Academic journal article Defense Counsel Journal

The Defense Perspective on Mediation

Academic journal article Defense Counsel Journal

The Defense Perspective on Mediation

Article excerpt

WHEN I first started practicing law 23 years ago, there were very few cases that settled through alternative dispute resolution (ADR). Today, it is becoming more and more unusual for a case to not be subjected to some form of ADR. The reasons for this are many, but some of the more important ones include the fact that ADR is less expensive and less time-consuming than litigation; it has simpler procedural and substantive rules than litigation; it tends to be less hostile and emotionally charged than litigation; and it is more flexible in scheduling than litigation. In addition, during a mediation, the parties retain the decision-making power to reach their own resolution, oftentimes utilizing remedies and relief that are not available to the parties in litigation. Based on the foregoing, I think it is safe to say that mediation is here to stay.

What exactly is mediation? Mediation is the process by which a neutral third party (the mediator) attempts, through participation in face-to-face negotiations with the disputing parties, to assist those parties in reaching an agreement that resolves the dispute. An oft-cited survey of general counsel, deputy counsel and chief litigators from 528 of the 1,000 largest corporations in America, the respondents noted that 85% had used mediation in the last 3 years and 84% said they were likely or very likely to use it in the future. This same survey also indicated that 81% of the respondents felt mediation provides a "more satisfactory process" than litigation, 66% said mediation provides "more satisfactory settlements" and 59% said mediation "preserves good relationships."

I. Why Are You Mediating?

In most mediations, the preferred end result is a full and final settlement of the dispute in question. There are also other equally important objectives that can be obtained through the mediation process that do not include a full settlement of the dispute. One commentator has the following to say about these objectives:

A. A Partial Settlement of Peripheral Issues

One reality of litigation is that all claims and all defenses arising out of the same facts and circumstances must be asserted in the same lawsuit. The judicial goal here - to avoid multiplicity of suits - is important to the judicial system and must be met. An unfortunate consequence of the rule, however, is that many lawsuits end up filled with peripheral arguments that really aren't determinative of the central issues between the parties. This tends to expand, rather than narrow, the focus of the trial and drives up the time and cost of an adjudicated resolution. Mediation can serve to eliminate those peripheral disputes by final or interim partial settlement agreements, stipulations to abate certain portions of the trial, or agreements to informally set certain issues aside pending the resolution of the main claims.

B. A Process to Move Toward Final Settlement

Many times, despite the best efforts to prepare for every contingency in advance, mediations become stalemated because of insufficient information or lack of agreement on what the facilitated negotiations reveal to be core or pivotal issues of fact or law. Rather than calling impasse and returning to the litigation path, the mediation process can be used to facilitate an agreed "downstream" program defining and scheduling further steps aimed at breaking those logjams and continuing steps toward reconciliation.

C. A Better Understanding of the Opposition's Case

Plan to listen to everything said during a mediation. Despite the considerable discovery skills developed by practitioners within the trial bar, it is seldom that the opposition's full story - complete with intended themes, nuances and emphasis is flushed out during discovery. More often than not, discovery will only reluctantly yield what we ask - not what we need to know. More importantly, mediation can provide the critical opportunity to see both sides of the story contrasted against each other. …

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