UNPRECEDENTED TIMES REQUIRE A VIABLE ALTERNATIVE – ADR IS THE ANSWER

by E. Michael Kavanagh, J.S.C. (Ret.) | October 2020

While there is no denying that Court Administrators throughout the United States have tried mightily to responsively address the threat the Covid-19 virus poses to our legal system, the fact is that the pandemic has had a catastrophic impact. The reality is that now in most jurisdictions, it is almost impossible for litigants to have their day in court, impaneling a jury is out of question, the processing of routine legal matters has taken a dramatic hit, the decisions on routine motions are significantly delayed, settlement conferences with assigned judges are virtually nonexistent and the backlog of cases awaiting trial on most court calendars has grown exponentially. 

As a result many practitioners are now utilizing alternative dispute resolution (ADR) techniques to resolve viable legal claims in a cost efficient manner. One such technique is mediation – employing a neutral who can help a party properly assess their respective positions in a legal dispute and at the same time provide recommendations that can form the basis of a final settlement. 

I have been privileged over the past several years to serve as a mediator in legal matters all across the United States and as a consultant to the United States Agency for International Development (USAID) on the use of alternative dispute techniques in emerging democracies in Eastern Europe. That experience has made it abundantly clear to me that there are steps a practitioner can – and should take prior to meeting with a mediator that can go a long way to insure that their client benefits from the mediation and achieve a final settlement that effectively addresses their legitimate interests. 

Important steps a client should consider for a positive outcome

• It is essential before meeting with the mediator that the client is “fully invested “in the mediation process.  It is crucial that the they completely understands how the mediation will be conducted. 
• The client, should be told that, initially the mediator will meet with all involved and give a brief description of the process to be employed in the mediation. 
• The client should know that the mediator may ask the party's representatives to make opening statements setting forth the particulars of the dispute, its legal history and the party's position as to how the matter should be resolved. 
• Next the mediator will meet privately or caucus with each side during which the legal issues attendant to the dispute will be discussed and at some point, possible settlement options will be explored. What is said at a caucus is confidential and will not be disclosed by the mediator to the other side unless permission is given by either the client or their legal representative.
• Finally, the client needs to understand before meeting with the mediator, that the mediation will only be successful if all involved are willing to engage in good faith negotiations and make responsible compromises if a binding agreement is to be reached resolving their legal differences. With that in mind potential settlement positions need to be discussed in detail with the client before the mediation takes place.

The all-important mediation brief

Also, prior to the mediation, counsel should prepare and submit to the mediator a brief with exhibits detailing the particulars of the dispute, its history, including a description of any prior settlement discussions, and arguments supporting the client's position on the matter at issue. The brief serves to educate the mediator as to the particulars of the dispute before meeting with the parties and sets forth arguments in support of a party's position that the mediator can use when caucusing with the other side during the mediation. It in effect arms the mediator with arguments that can be used to move the other side closer to your client's settlement position. Counsel is not required to share that brief with the other side and can expressly provide that it is confidential and for the mediator's eyes only.

Selecting the mediator

Finally, each side has to agree on the mediator. 

• The mediator's experience, professional background and reputation in the legal community are all factors that need to be consider; 
• An interview with the individual is highly recommended; 
• References should be provided. Names of attorneys who have previously participated in a mediation should be consulted. While those references are likely to be favorable, those individuals can also identify others who have represented the other party's who participated in the mediation. Those individuals should be able to provide a fuller picture of the mediator and how they handled the mediation; 
• Lastly, an internet search can often provide a gold mine of information about the mediator and their history in using mediation to resolve legal disputes. 

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The U.S. Department of Labor recently reported that 85% of cases submitted to mediation result in final settlements. Given the situation which now exists in our courts, a cost effective and efficient dispute resolution technique, should always receive the utmost consideration from practitioners who are looking for a timely, efficient and economical method by which they can resolve claims in behalf of their clients.

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ABOUT THE AUTHOR

Since joining NAM, Hon. E. Michael Kavanagh, J.S.C. (Ret.) has arbitrated and mediated hundreds of cases involving Complex Commercial, Construction, Labor and Employment, Legal Malpractice, Product Liability and Personal Injury matters involving settlements in the amounts of six figures and greater. Judge Kavanagh has been ranked a Top Ten Arbitrator by the New York Law Journal Best of Survey for four years consecutive years.