Mediation and alternative dispute resolution have been a central focus of courts around the country for several years. Mediation has been successful in resolving cases and in highlighting to clients and lawyers the reasons why settlements cannot occur in certain cases. These highlights fall into two primary categories – (1) clients who are not ready to settle or clients who simply want their day in court regardless of result; and (2) cases that present evidentiary or legal issues that simply need to be resolved by a court so that future decisions are founded on battle tested results.
Initially, nearly all mediators were retired judges or magistrates. Retired judges and magistrates could bring to the mediation process the insights of a judicial neutral with respect to jury conduct and real life trial experience. Retired judges and magistrates work well in situations where clients are either – (1) inclined to settle based upon their individual or corporate personality; or (2) in cases involving personal injuries.
The second wave of mediators were lawyers or social service specialists in particular areas of the law. The primary group of lawyers were those with significant personal injury experience who had developed credibility in the courtroom with both the personal injury bar and with insurance adjusters and risk managers. These lawyers became better “closers” when it came to mediation because they had even broader experience across a variety of jurisdictions and types of cases. A second group of lawyers were lawyers who specialized in construction litigation. The particular specialty and the personalities of the parties to such disputes equipped lawyers who specialized in the area with more tools – both legal and factual that a typical judge to address this specialized dispute process. The social service specialists tended to focus on cases involving children in divorce or victims in domestic violence or sexual violence situation. Again, the specialized training made those specialists, whether they were lawyers or not, more likely to bring closure and resolution in the settlement process.
Recently, lawyers who serve clients in complex commercial litigation have found that the spectrum of mediators available to facilitate the type and length of discussion necessary to resolve complex commercial litigation to be very limited. Most trial judges have never been involved in complex commercial litigation prior to becoming judges and the personal injury approach simply does not provide the background to facilitate communication and to develop approaches to resolutions that are effective. The result is often clients who become disenchanted with the mediation process and leave mediation with ill will toward either their opponent or their opponent’s lawyer. Those feelings lead to trials where they need not occur and create a higher risk of catastrophic results for clients. We have found that lawyers who have significant experience in both the preparation and trial of complex commercial cases are very effective mediators even if they only mediate a small number of cases or have not had extensive mediation training. The problem is that there are very few lawyers who have had enough trial experience to fill this role. We found that such lawyers can be the most effective “closers” for complex commercial settlements and also know how to communicate to clients why cases cannot or should not settle at a given point in time so that hard feelings are less likely at the end of an unsuccessful mediation.
The first time I was asked to consider an engagement as a mediator, I was concerned whether I could communicate in such a way to add value. After engaging in the mediation process as a mediator, I found that a fresh set of experienced eyes on a case provided a number of valuable resources that either facilitated settlement or adjusted focus of the lawyers and clients to that settlement became possible at a later date or specific knowledge of the reason why as case needed to be resolved in a trial and the expense and risk of such an undertaking were better understood by the client based upon information received from an experienced neutral. With those initial experiences – i decided to take intensive mediation training at the Northwestern University Law School. The training was intense and very informative. I learned techniques that supplemented the evaluative experience that I have from my years as a trial and appellate lawyer with critical facilitative skills for use in achieving settlements based upon the needs and interests of the parties rather than simply shuttle diplomacy or evaluative analysis of positions. As a result of the training I have a earned a certificate in mediation skills from Northwestern University.
When I mediate cases, I ask that the parties and their lawyers sign a mediation agreement so that everyone understands before we begin the undertaking involved. I ask the parties’ lawyers to submit information from which I can adequately prepare for the legal and factual issues in a case prior to meeting with clients and lawyers. In many cases I will speak with lawyers prior to the mediation to address issues that will aid the mediation session. The amount of preparation necessary for effective mediation varies from case to case. At the beginning of the mediation I speak with the lawyers and the parties to achieve a better understanding regarding the needs and interests of those involved along with the legal positions that they take. In that process, I attempt to explore the range of potential settlement solutions. The initial process may take place in joint session or in individual caucus — that’s up to the lawyers and parties. After needs, interests and settlement options are explored, the next step is shuttle diplomacy that is both facilitative and evaluative to try to reach a resolution or all or some of the issues presented. Whenever a settlement is reached, a mediator’s agreement will be executed which sets forth concisely and in simple language what the settlement is, so that when a case is settled, it is resolved, once and for all. Fees vary by case. My current hourly rate for mediation services is $400 per hour for two party cases with a minimum fee of one-half day payable before the mediation begins. In each case I am asked to mediate, I will speak with the lawyers and determine if that fee structure is appropriate for the matter or if some other fee arrangement is called for either by complexity of the matter or the number of parties involved.