Thursday, October 1, 2009

Uncomfortable Truths

Applied to the right cases, there is no doubt that the mediation process can do a lot at a relatively early stage to resolve what would otherwise be protracted and expensive litigation. Having said that, I also believe that there are many cases where a mediator would be superfluous. This proposition may sound like heresy, coming as it does from someone who makes a good part of his living mediating cases, but I think it is borne out by my experience since 1992 as a volunteer neutral for the New Hampshire Court system’s mandatory ADR program.

In my state, civil cases that used to settle "on the court house steps" are now scheduled for mediation or other ADR at a point in the discovery process when the parties expect to have a reasonably good handle on the facts, but have not yet spent the time and money necessary to get their cases completely ready for trial. The program’s statistics show that cases are settling earlier than they used to, but do not appear to indicate a substantial increase in the settlement rate overall.

I have long had a sneaking suspicion that the pre-1992 delays in settlement — at least for the mostly-about-money cases — were primarily due to inertia, rather than to the lack of intervention by mediators, and that improvements since have had more to do with timing and party readiness than with the process of mediation itself. My experience with mediating fairly routine soft-tissue injury cases, for example, suggests that when parties are ready to settle, and come into mediation with a fairly good idea of the reasonable range of values, their cases usually settle. But they settle because the parties and their attorneys are ready and on roughly the same page, rather than because they got a lot of help from the mediator. In many other cases I have mediated, the parties were not ready and needed further discovery before they could begin serious negotiations. Most of those cases went on to settle without outside assistance after further information was obtained and exchanged.

When ADR is scheduled by the courts, lawyers, parties and insurers are (a) required to look at their files at the same time, (b) get together at the same time, and (c) work on resolving their case at the same time. Guess what, folks; with a little extra effort and planning, you don’t always need a mediator when you have that going for you.

In fairly routine cases, instead of reflexively scheduling a mediation, if you have a reasonable level of comfort with your opposing lawyer, sit down for lunch with him or her and see whether direct negotiations might be a better way to go. Kick the case around frankly "off the record," discussing in general terms how you will play your strengths and how you will deal with your weaknesses. Forget all that stuff you may have read about appearing to be weak when you talk about settlement. Hardly anybody thinks like that anymore.

You don’t have to start talking about a specific range of values at this juncture.* There are other ways to get a feel for how your opposite number sees the ballpark. Statements like, "My client isn’t looking to retire on this," or, "my company knows it’s going to be on the hook for something," for example, may be enough. If you think that further negotiations are likely to be fruitful, schedule a face to face settlement conference attended by everybody who would normally attend a mediation — except the mediator. Have separate rooms for private attorney-client discussions, and then just negotiate as you probably would with a mediator — the plaintiff starting high; the defendant starting low; and both meeting somewhere in between.

If this approach doesn’t work, at least you have a pretty good idea what the problem is, and can then hire a mediator — or not.

* In fact, that would probably be a bad idea. If you come right out and suggest a range of values, say, between $25,000 and $40,000, your opponent will regard that as a $25,000 demand if you represent the plaintiff, or a $40,000 offer if you represent the defendant!

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