Joe Epstein and Steve Berkowitz
Proactive Mediation, October/November
1999 Trial Talk, Vol. 48, Issue 5 p. 13
work on deadlines. A
mediation is scheduled for the 25th.
Confidential Settlement Statements are due on the 18th. All too often the attorneys and the mediator
are thrilled if the Confidential Settlement Statements come in by the
23rd. The parties and counsel come in on
the 25th. The attorneys expect the
mediator to know their case nearly as well as they do except that the mediator
is not to perceive all the weaknesses they have with their case nor the depth
of those weaknesses. The parties,
depending on their sophistication and background, may have had extensive
background with negotiation and mediation (e.g. adjusters & businessmen)
but others come in with little or no experience with the mediation process
(e.g. plaintiff(s) in personal injury cases).
Frequently, parties have a strong personal investment in their
case. Notwithstanding the emotional
connection many people have with their case, we often ask them to trust and
listen to a mediator that they have never met before. They are to trust a mediator who their
advocate wants to be fair, impartial but favorable to their client. Most people come to mediation with the hope
and expectation that there will be "closure". Some are content if they leave with a discovery
plan or free discovery but most are looking to get their case
resolved. The best way to assure closure
is for everyone--parties, decision-makers, attorneys, adjusters and
mediators--to come to the mediation prepared.
Proactive mediation is designed to have parties, their advocates
and the mediator ready for closure.
What is Proactive and Creative Mediation
The Paradigm Shift
The paradigm many ADR providers start with
is the automatic delivery of standardized alternate dispute resolution
services. Typically, there is little
communication between the consumer of ADR services and the ADR provider about
the structure of the process or the anticipated dynamics of the dispute
resolution process. More often than not,
the ADR specialist and the advocates do not design the ADR process. Too often the premeditation process is rote
and sterile. In contrast, proactive mediation brings energy and
creativity to the mediation process even before the parties get to the table.
Proactive mediation requires that
parties ask, "When do I use ADR"
and "What is the best form of ADR Design for this case" Decisions about design impact the answer
on the timing question. Proactive mediation requires analysis
of these issues. In all but the most routine case, advocates and the ADR
specialist should confer when or shortly after a case is first set for
mediation in order to determine the best ADR process for a particular
case. Proactive mediation requires that advocates and the ADR Specialist design the appropriate ADR process to
fit the specific case.
For example, in large commercial or health care cases
there may be a decision to have parallel mediation and arbitration going at the
same time. The latter creates the
pressure to get to "closure" in the mediation.
The former might allow the parties to carve out some issues from the
arbitrator and put them into mediation.
Similarly, in some other instances
(e.g. personal injury, smaller commercial cases) parties have opted for a "med/arb same"
process in order to enhance the neutral's power and the neutral's ability to
get the case closed. In some instances,
a mediator learns with the initial case setting, in a pre-meditation status conference call, or in a later follow-up call
that the parties have not adequately prepared their opponent or themselves. In such instances, it may make sense to
postpone the mediation in order to get the IME done, the economist's report
distributed or critical depositions completed.
In other instances (e.g. employment
cases and professional negligence cases), a pre-mediation conference between the mediator and the advocates may
result in a decision for a staggered
start for the mediation. In other instances, the decision may be that the
ADR specialist should conduct pre-mediation
caucus with each party before the scheduled mediation. The pre-mediation
caucus provides the mediator with an opportunity to develop trust and
rapport and to identify important issues (legal, factual, and personal) before
preparation is an essential mediation dynamic. Client preparation begins with the initial
case intake. Along with the retainer
agreement and the disclosure statement (if applicable), clients should be
provided with an ADR Disclosure Form
describing the different forms and varieties of ADR. Discussion about the ADR Disclosure Form provides an opportunity to start thinking of
the ADR forum best suited for a particular case. It is never too early for an advocate to
start the process of exploration necessary to get to their client's underlying
interests and concerns. For a
business client there may be an interest not only settling the immediate
dispute; but also, in establishing an ongoing early and less costly dispute
resolution process for future repetitive conflict issues. For an accident victim an apology and
acknowledgement of the impact the accident has had on the plaintiff may be
important ingredients for a settlement.
Advocates should analyze other pre-mediation considerations. Do you and your opponent want a facilitative or an evaluative dispute resolution process In other words, do you want mediation or a settlement conference Do the parties want a hybrid process that starts out facilitative but becomes evaluative
when the parties are getting stalled Do
the parties want a neutral to share his/her case evaluation If so, when should the mediator's evaluation be revealed How should that evaluation be conveyed Should
the evaluation merely be in the form of telling either or both parties that
they are in or outside the range of reason Does being evaluative mean strongly
challenging one party's evaluation in a private
caucus Parties need to be sensitive to these issues and appreciate that
there are no "pat" answers.
Advocates need to considered
whether most, if not all, of the disputed issues can be resolved by mediation and whether some can be
resolved by med/arb. Advocates should consider whether their case
is an appropriate one for utilizing a special
master for discovery disputes. Is
this the right case for med/arb Does my
client need a reality check When
is this needed
Proactive mediation requires that the advocate work
with his client before the mediation to establish an overall settlement goal, a
mediation plan and a case theme.
Tactical and thoughtful decisions need to be made about demonstrative
exhibits, the contents of the confidential settlement statement, who will
attend the mediation and whether a pre-mediation caucus would be helpful. Before the mediation parties should try to
determine a reasonable settlement range, their opening position, then the likely opening position of the opposing party,
their bottom line and the opposing party's likely bottom line. Parties should plan their negotiation
strategy and try to anticipate the negotiation strategy of the opposing party.
mediation also requires careful
consideration of when to use
mediation. For example, in business disputes between businesses (with an
ongoing income generating business relationship) the best settlement strategy
usually is to bring the parties to the table as soon as possible-before the
business relationship is permanently poisoned.
The parties might consider independent
fact-finding, mediation or med-arb.
parties have an employment dispute involving a high profile defendant, they
should consider using an ADR process before the publicity arrow has left the
quiver. Once the publicity arrow has
been fired, positions, at least on one side, may harden and may frustrate
In personal injury cases and professional
negligence cases, the parties have to exchange enough information to allow a
reasonably fair analysis of the case.
Sometimes such an exchange of information can occur without the formal
filing of a claim. In other instances, key depositions need to be taken before
the parties can effectively come to the table. Problems associated with last
minute resolution include the hard costs of the litigation process, the human
costs on the parties, the enmeshment of counsel and client.
deciding, when to use ADR, each case requires analysis of the relationship of
the parties, the information reasonably required for resolution, the costs (economic
and non-economic) associated with the litigation process and the
approximate value of the case.
Generally, parties can use ADR sooner rather than later and proceed with
85% of the "required" information.
Dynamics at the Table
Who should come to the mediation
table Have the advocates and the
mediator considered this separately and together Advocates need to identify the actual
decision-makers on both sides of the case.
Generally (but not always) it is best to have the decision-makers at the mediation table. Thoughtful advocates and mediators appreciate
that a decision-maker distant from
the mediation scene has less of a feel for the on-going dynamics of the
mediation process than the people at the scene.
In medical malpractice cases, the defendant doctor should
not avoid the conflict and should be present.
The physician's advocate should discuss the consent issue and the risk
of an excess verdict with the physician before the mediation. Private counsel may
be available by telephone or present as appropriate. If there is a difference of opinion between
retained defense counsel, the adjuster, the physician
and/or private counsel these differences need to be addressed before and during
If there is a
significant subrogation claim Plaintiff's counsel should have dealt with the
problem before the mediation or have arranged to have the decision-maker for the lien holder present at the mediation or
availably by telephone. The presence of
a wife, mother, father, parent, child or sibling may be necessary to facilitate
the claimant's decision-making.
Sometimes such persons are the behind-the-scenes decision-makers.
Frequently, it is best to get such people in front of the curtain.
In some instances, it may be helpful to bring neutral experts to the table. In larger cases, I have started a practice of
asking the parties if they have considered using a structured settlement as
part of the dispute resolution process.
If they have and if both parties think it will facilitate closure, I
bring a neutral structured settlement person to the mediation.
parties come to mediation hopeful if not expecting that they will settle their
case. However, parties should be mindful
that there are secondary reasons for using mediation. If an advocate is observant and willing to
listen these are secondary benefits can be
maximized. Mediation may resolve part,
if not all, of the case. In caucus,
if not in general session, counsel can test his theory of the case or
defense. Counsel may get a better
feeling for his own client and the opposing party as witnesses. The settlement and mediation process may
serve as a reality check on expectations.
Counsel may elect to use the mediator as a conduit for the delivery of
the "bombshell" or "smoking gun".
Mediation, particularly in smaller cases, may serve as the precipitator
of early informal discovery. In other
instances, it may serve as a forum for developing a discovery plan. Alternatively, in complex cases, the parties
might opt to have the mediator serve as the special master for discovery. On a positive note, mediators may be utilized
to pull the punch on harmful information, initiate creative settlement
proposals and develop a bracket for high/low arbitration.
Parties should not only consider who
should be at the table but they should also consider how to stage the table.
For example, have the parties and/or the mediator considered using a staggered start A staggered start, typically with the plaintiff going first, may
serve to replace the pre-mediation
caucus, which can be difficult to schedule. By visiting with the parties
before the general session the
mediator has the opportunity to develop better report with all parties and
develop a better sense of how to structure and focus the mediation. Should
there be a general session What should the format of a general session be in a particular
case Parties need to consider whether "opening statements" would be helpful or harmful to the
mediation process. Would a joint focused
start directed to an exploration of differences regarding specific issues
be helpful Advocates experienced in proactive
mediation will be asking questions like these from the throughout the
Advocates need to put the same time,
creativity, thoroughness and energy into the ADR process that they put into
trial preparation. Consumers of ADR services
should be involved in the design of
the ADR "product" and should be open to all the potential benefits to be
derived from the ADR process.m