Robert A. Creo Arbitrator & Mediator

BY ROBERT A. CREO*

Fred: Cindi, do you have a minute to discuss something unexpected that has come up on the Jones case? I just received a letter from the insurance adjuster proposing mediation. I have never used mediation before and I thought you may have taken an arbitration course in law school.

Cindi: Yes, it was one of the best classes I ever took. The professor covered arbitration, negotiation and mediation. We spent a large portion of class time on mediation including doing mock cases. I heard Alternative Dispute Resolution is the most popular law school elective course in the country. In fad, some law schools are requiring it and integrating it right into their substantive courses. Some states, like Florida, have mandatory mediation of all civil claims. In others, like Texas and California, the judges send most cases to mediation. Even the federal courts have mediation pro-grains, including a full time staff mediator for appeals pending in the Third Circuit.

Fred: I know you are only a couple years out of law school, but do you think this is something I should look into or do you think it is another defense tactic? I am not interested in giving up my right to go before a jury, only to have lawyers decide the value of my case. We have clear liability and two deep pockets. I hate all the effort it takes to pick an arbitration board and find a neutral third member

Cindi: No, Fred, you are confusing mediation with arbitration. The mediator does not make decisions and usually works alone. A mediator assists the negotiations and does not make binding decisions or any recommendations to the court.

Fred: Well, how does the mediator place a value on the case? Do we present witnesses and legal arguments?

Cindi: Well, each mediator has their own approach but, in general, mediators act in either a facilitative or evaluative style- Facilitators do not offer their own opinions or recommendations; evaluators will offer feedback on different aspects of the case and may suggest a range of likely outcomes. Many mediators start out facilitative and as the mediation progresses become more evaluative. The process is voluntary so any party is free to ignore any opinion or recommendation of the mediator.

Fred: Then what good is the mediator? We can roundtable cases here and with our colleagues down the hall. No one really knows for sure what a jury will do on a particular day

Cindi: Well, I know that the mediator being neutral and impartial is a considerable benefit because it allows the parties to bounce things around in an informal capacity with someone who is experienced but has no investment in the case. Also, there is a lot of emphasis on confidentiality Let me look at my course materials and get back to you tomorrow morning. Okay?

Fred: Sure. Let’s talk first thing tomorrow morning. This is an important case with very difficult clients that possess high expectations. I do not want to make any mistakes.

The Next Day in the Conference Room

Cindi: Fred, here is a copy of the mediation confidentiality statute. It’s in the Judicial Code, Title 42, Section 5949. It was effective, April 30, 1995.

Fred: Hmm. Reading this quickly, it looks even broader than the attorney-client privilege. It appears the privilege runs to the mediation process and the mediator and not to the litigants. Is that a problem?

Cindi: I don’t think so. My notes from class say the intent is to allow a free flow of information to and from the mediator and between the parties. Documents produced solely for mediation are not admissible; evidence already in existence is still admissible even if it is discussed at the mediation session. The confidentiality statute and the process does not enlarge nor diminish rights or evidence. My notes point out that if a prior oral statement is already admissible, then it does not obtain protected status by merely repeating it in the mediation session.

Fred: So, the idea is a free-wheeling argument? Say anything to anybody?

Cindi: Well, there are a few different facets of mediation. There are joint or common sessions involving everyone and then private sessions called caucuses where each side or party meets only with the mediator. I think that is where most of the action takes place.

Fred: Oh, I see. It makes sense now. We argue and posture in front of the other party then ease off in the caucus. Let our hair down some in front of the mediator who is not able to share our true position with the other side. 11mm. I like that idea; I can see it has great potential to cut through the bull and get to the heart of things. You know, everyone dances to a certain point and then issues gain momentum and people get serious.

Fred: Right, just like the old fashioned way when I started to practice years ago. No hem-hawing around with a game of voice-mail tag which lasts weeks. The adjusters came to the plaintiff lawyer’s office with a checkbook and you made the deal if you were fair and they were reasonable.

Cindi: I talked to Mark from upstairs in the elevator this morning about mediation. He is a sole practitioner and uses it all the time- He told me he has used mediation to settle personal injury, construction, partnership break-ups, and many other cases. I was skeptical how a sole practitioner would use it, but Mark says that he contacts the other lawyer all the time to propose mediation, especially early on in the case. He thinks he gets his best settlements before the parties have become polarized and have spent lots of money-. Once a case gets filed, it often takes a life of its own and it is years before it gets placed at issue and settlement is seriously discussed.

Fred: What is the downside of mediation? What are our risks?

Cindi: Well, there is the expense of the mediator. Sometimes the defendant pays for it but often it is split equally between the parties. This could cost us between $500 and $1,000 for our share of the fees. We might not settle, so it could be a waste of time.

Fred: I have wasted lots of time in depositions and lots of money on transcripts for cases which never went to trial. In fact, less than one of ten cases which have come in the door actually go to a verdict. Do you think if we did not settle, we would gain anything of value at the mediation?

Cindi: Sure. We would get feedback from the mediator which might help us focus our case. It would also let our clients see first-hand what we are up against in litigation. Our case is straightforward; I don’t think they will learn anything that will tip our hand in court. It is usually referred to as a "win-win" process.

Cindi: That is what I meant about letting them participate in their case. I think clients become disconnected from what is really happening since all they see is some paperwork and maybe appear at one deposition.

Fred: That’s true. Clients are so much more demanding than when I started to practice. Until recent years, I fired more clients than ever. It was my way or the highway. Not anymore.

Cindi: One thing we lawyers have to remember . . . clients do not come to us to purchase litigation. We are not selling a trial or an opportunity to appear before a jury of their peers. People come because they have a problem and they want it solved as quickly and inexpensively as possible. I think mediation is popular because it addresses those client needs. Mark says he starts talking about mediation as an alternative approach to a jury during his initial case interview and intake. We should maybe have lunch with him and find out how he does it.

Fred: That is a good idea but let’s focus on Jones right now. How about if I have you call the defense counsel and say we are interested in mediation but need a few more details. I am interested in learning about the costs, the available mediators, and their track records. Find out from Mark whom he has used successfully

Cindi: Will do.

Cindi: Fred, here is the list of mediators, their bios, references and fee schedules. The defense has focused on two in particular but is flexible.

Fred: Well, knock those two off of the list immediately. I do not want to get "homered" on this case.

Cindi: No, I don’t agree with you. In fact, I think we should go with one of the two of them. Mark says he always accepts the other side’s recommendation once he checks them out. He feels if the other side has confidence in the mediator a favorable settlement is more likely. If we have a good case and are reasonable, the mediator will put pressure on the other side.

Fred: Okay. You choose and plan to attend the mediation session with me.

Two Weeks Before Mediation Session

Fred: The pre-mediation submission looks good, but are you sure you want to be so open to the mediator about some of the weaknesses in our future medical claim?

Cindi: These are submitted on a confidential basis and the header on each page says it is a confidential mediation document intended for settlement purposes. Our weak points are obvious, so I think we gain credibility by being up-front about them. Mark told me that this mediator spends a significant amount of time in private caucus playing Devil’s Advocate.

Fred: Well, four pages of narrative plus the specials and the photos seems short. I never saw such a brief Brief.

Cindi: Remember what I told you when we first discussed it, mediation is supposed to get to the point . . . to focus on the true issues, to settle a case . . . not to create new law or precedent.

Fred: Can you at least make the font bigger to make it longer?

Cindi: Uhh, uhh. No.

Fred: Will we see their submission before the meeting or at the mediation itself?

Cindi: No. We won’t see it. These are submitted on a confidential basis.

Fred: I noticed we are booked for the whole day Does it usually take that long?

Cindi: The mediator suggests we plan for the whole day since it takes a lot of effort to coordinate schedules and that "the parties deserve their best shot" at settlement.

Fred: You talked to the mediator? Isn’t ex parte communication prohibited?

Cindi: Yes, I spoke with the media-ton Most of the mediation process is ex parte. It is like shuttle diplomacy. The mediator goes back and forth between the parties until either a settlement or an impasse is reached.

Fred: Our clients are lined-up to be there all day?

Oindi: Yes. They are thrilled that something is finally happening with their case and that they will get to tell their story and to vent to the mediation They were very frustrated in their depositions . . . they felt very limited and seemed upset that you told them to not volunteer information. They felt stifled. A drunk rear-ended their car, hurt their only child...and they felt like they were the ones on trial.

Fred: Well, bring them in two days before to meet and prepare for the mediation.

Mediator: Well, after a long day I am pleased to announce a full settlement of all claims. It was hard work for all of us. I appreciate the candor and flexibility which permitted us to achieve our goal; resolving the matter today. I note to all parties, especially to Mr. and Mrs. Jones, that you may have some "buyer’s remorse and believe you could have gotten a better deal if you "hung tough," but the reality is that we have been successful because of the ability to compromise. My experience is that most plaintiffs are eager to bring closure to the legal aspects of a case and to continue the healing process. A layperson often perceives that litigation injures them a second time . . . that a trial just pours salt on old wounds that may have otherwise healed sooner. The lawyers and the risk professionals can close this file and move on to their next case.

Fred: manic you. I understand that the defense counsel will prepare a formal release within the next week and that we will have the funds within a week of executing the release I was a little uncomfortable with not signing anything here at the session but it is fine to proceed in this manner. Most settlements are obtained orally over the telephone and then later reduced to writing. I guess this is not much different.

Fred: Well, Cindi, I did not feel in complete control at the mediation. It is an odd feeling but not entirely unpleasant. I think you should review some of the files to see if we car move some of them via mediation. We really don’t make any money unless we move our inventory in an efficient manner. I liked the idea of everyone being there and also being challenged by the media-ton Even if we had not settled, I think all parties would have tried a better ease.

Cindi: It felt good to actually use something we learned in law school. Most important, the Jones family is really happy to have this resolved and are going to refer anyone in need of a lawyer to us.

Fred: Well, mediation will become another tool for us to use when appropriate. It seems like it has great potential. I am surprised it is not more popular here.

Cindi: I think it is used more often here than most lawyers realize. Mediation is not just something for the big firms or big cases. It can really help small shops like ours, too.

Fred: Cindi, thanks for all your good work on this one.