Resolution delayed is often justice denied
Our civil justice system is broken. Overburdened and underfunded courts are systemically unable to dispense justice swiftly in civil cases. Court-annexed mediation, which routinely led to the early resolution of thousands of cases each year, has been eliminated by the Los Angeles Superior Court due to budget constraints. Gone, too, is the Case Management Conference in personal-injury cases, which had assured some degree of court oversight and management of the litigation process, and which had provided the courts with an opportunity to “refer” parties to mediation in the early stages of the case. Dates for hearings on motions must be reserved 180 to 270 days in advance, requiring the continuance of already calendared trial dates. But the resulting backlogs and delays in getting to trial do not mean that the resolution of disputes must therefore be delayed.
As everyone knows, most matters are resolved through negotiated agreements, not trial. While an approaching trial date is often the impetus to finally discuss settlement, litigants are not constrained to adhere to a resolution timetable inextricably fixed to the court’s budget woes. Trial attorneys have the ability – and the incentive – to accelerate that timetable by embracing an approach to dispute resolution which ensures that resolution is discussed and achieved, and justice thereby served, more quickly and more efficiently.
For too many, the filing of a lawsuit has become a declaration of war. Soon to follow may come battles over pleadings, discovery, depositions, expert witnesses, dispositive motions, trial exhibits, motions in limine and jury instructions – all leading to the ultimate, but not necessarily final, battle: trial.
Opposing counsel often assume the role of enemy combatants, determined to wage war until one side is able to claim victory over the other. To demonstrate their allegiance to client and cause, and to perfect their reputations as unyielding warriors, opposing counsel often treat each other with incivility or, worse yet, overt hostility.
Not surprisingly, conflicts tend to escalate and relationships often deteriorate as a result. Where compromise might once have been possible, intransigence becomes the rule. Resources that might otherwise have been budgeted towards settlement end up earmarked for depositions, experts, private investigators, attorney fees and other purposes.
Eventually, after years of conflict, a last-minute truce is usually brokered as the trial date approaches, and the parties finally agree to sit down with a mediator. By then, however, the years of battle have taken their toll. The parties and their counsel arrive at mediation disliking and distrusting one another. The blood that has been figuratively spilled and the treasure that has been literally spent create additional obstacles to settlement.
With the help of a mediator, the parties still manage to reach a settlement most of the time – but that does not mean the mediation was therefore a success. Relationships may remain strained or permanently damaged; settlement terms may not be as favorable as they might otherwise have been. Either way, the resulting delay has robbed the parties of the one commodity – so often overlooked and undervalued – that can never be replaced. It has robbed them of time.
Increasingly, however, attorneys and neutrals have been sharing stories with one another about cases that do not resolve at mediation, or require multiple sessions to do so. There are a variety of explanations for this phenomenon: egos getting in the way; personality clashes that spill over from the years of legal skirmishing; client expectations that have not been properly managed; critical information that has not been exchanged; doubts that the other side is negotiating in good faith; and the fact that the cost to settle has been inflated due to the amounts spent waging a long and usually unnecessary war.
All of these obstacles to settlement share one thing in common: they can be prevented – or better managed – by recognizing that dispute resolution is more than an “event” to be placed on calendar as the trial date approaches. Dispute resolution is a process that begins the moment the client first walks into your office and continues until the day a resolution is reached, whether by direct negotiation, mediation, arbitration or trial.
By opening a dialogue about dispute resolution with opposing counsel right from the start, you may prevent a costly and uncivil war, giving both sides a better chance to achieve an earlier and more satisfying resolution.
Peace by peace
Martin Luther King, Jr. once said, “Peace is not merely a distant goal we seek, but a means by which we arrive at that goal.” Adopting a less combative approach to litigation is not incompatible with zealous advocacy. What follows are a few thoughts about some of the ways attorneys might employ more peaceful means to achieve the earliest and best possible resolution for their clients:
• Litigation does not have to be contentious, and opposing counsel do not have to become adversaries. Though you may view the dispute through different prisms, you do share a common goal: finding a way to fairly, quickly and economically resolve the dispute for your respective clients. Given that you share the same objective, collaborating and cooperating with one another may prove to be a more effective strategy.• A proven way to establish a collaborative and cooperative working relationship is to invite opposing counsel to grab breakfast or lunch with you to chat about the case – especially if it is someone you haven’t previously met or opposed. As you become better acquainted with one another and learn a little bit about each other’s background, families and interests, you are likely to discover that you have one or more things in common. You may also find that it’s more difficult to demonize someone once you’ve broken bread with them.• Some very successful attorneys make it a practice to tell opposing counsel – at the very outset of the litigation – that they are a strong proponent of mediation and believe both sides will be best served by mediating as soon as sufficient information has been exchanged. Contrary to popular belief, expressing an interest in mediating is not a sign of weakness.• There’s no harm in asking opposing counsel early on for a list of mediators that he or she respects and has used in the past. In all likelihood, you or a colleague will have worked with one or more of them and will find some on the list desirable. Moreover, opposing counsel is likely to reciprocate and ask for the names of mediators you respect and have used in the past. In addition, if you find that you are both interested in retaining a mediator whose calendar tends to fill up several months in advance, you will have the benefit of knowing that fact early enough to begin the scheduling process. It is more efficient to book a mediation six months in advance, giving you the time you need to exchange and analyze information, than it is to find you must wait an extra six months once you are ready to mediate.• A good way to avoid an acrimonious relationship with opposing counsel is to discuss a reasonable timetable for the exchange of documents and the depositions of parties and witnesses – all geared toward successfully mediating the dispute at the earliest possible date. Sometimes, it may be more expedient to exchange documents voluntarily, without the necessity of formal discovery.• If you anticipate that expert opinions are likely to play a significant role in any dispute resolution efforts, you may want to propose designating and deposing your respective experts as soon as possible, rather than waiting until the statutorily prescribed dates. In fact, and I know this will be a highly controversial suggestion, you may want to consider jointly retaining an independent expert to provide an opinion upon which both sides will rely for the purpose of engaging in settlement discussions at mediation, with the understanding that both sides would still retain the right to designate separate and different experts for trial if a settlement is not reached at mediation.• Along similar lines, if you envision using a focus group to assess the strengths and weaknesses of your case, consider suggesting to opposing counsel that you share the cost and together observe the same focus group before mediating so that you have the benefit of identical feedback. If you have any qualms about the concept, you may want to talk with colleagues who have tried Jury Mediation™.• In most cases, it will help to present a reasonable settlement demand – supported by relevant documents, jury verdicts and published settlements – well before a scheduled mediation, because opposing counsel will need time to report to clients and carriers. If you do present a settlement demand in advance of the mediation, you may want to request that opposing counsel respond with an opening offer before the mediation, so you can properly manage your client’s expectations.• Managing conflicts and disagreements that arise throughout the litigation requires early intervention, the earlier the better. It may also require that the advocate become the peacemaker. Effective advocacy and peacemaking are not mutually exclusive; they are really different sides of the same coin. An effective advocate knows when and how to use diplomacy to advance his or her client’s interests.• Try not to let any conflict fester. Pick up the phone and call opposing counsel to discuss your concerns or to suggest getting together to work things out.• Throughout all of your meetings and contacts with opposing counsel, avoid making provocative or inflammatory comments. Reasonable people can disagree without becoming disagreeable.
By establishing and maintaining a collaborative relationship with opposing counsel, you will be in a far better position to pursue an early resolution to the underlying dispute.
CALM . . . before the storm
Even those who establish good working relationships with opposing counsel may encounter conflicts or disagreements that they are unable to resolve on their own. If so, engaging a mediator to serve as Conflict and Litigation Manager (CALM) – an acronym I coined that seems apropos – may help prevent the brewing storm from materializing.
The most effective mediators possess a broad range of skills, the most overlooked of which is that mediators are trained in conflict management. Despite this training, mediators are usually retained late in the game solely to help the parties “resolve” their dispute and seldom retained early to help counsel “manage” the process.
As conflict managers, mediators are adept at helping both sides focus on solutions rather than problems and on interests rather than positions. As a result, tensions are often reduced and disagreements which might otherwise require court intervention are frequently resolved. Even a brief meeting, or telephone conference, with a mediator to address issues that counsel are not able to resolve on their own may get things back on track.
There may also be cases in which it makes sense for a mediator to play a more prominent and proactive role in managing the litigation process. In that capacity, a mediator might schedule an early meeting with all counsel – and perhaps the parties themselves – to identify the critical factual and legal issues which are in dispute; to coordinate the timely, efficient and economical exchange of relevant documents and other discovery; and to determine which witnesses need to be deposed and to coordinate their depositions. Thereafter, the mediator might monitor the progress being made on a monthly, bi-monthly or quarterly basis; help determine when the parties are ready to mediate; and arrange for the exchange of an initial demand and offer in advance of the mediation.
In other words, engaging a mediator to manage conflict and litigation from the very start may pave the way for meaningful settlement discussions to take place at the earliest possible time.
Dollars and sense
Skeptics may question whether spending dollars on a mediator to help manage the litigation process makes sense. Those who have retained mediators for that very purpose know it makes sense because it can actually save dollars.
The use of a mediator to help manage litigation is fairly common in construction disputes and other complex cases, but is seldom considered in other cases. In reality, however, the use of a mediator to help manage conflict and litigation can be of tremendous value in routine and smaller cases because it can actually reduce the cost of litigation. Consider the following examples:
• Opposing counsel meet with a mediator for 90 minutes at the outset of litigation and develop a case management plan that eliminates several witness depositions and narrows the scope of documents to be produced, resulting in substantial savings – in time and money – for both sides.• In an effort to avoid the filing of a Motion to Compel, opposing counsel agree to a 30-minute telephone conference with a mediator, who helps them reach an agreement that eliminates the need for court intervention and all of its attendant costs (i.e., preparation of the motion, opposition and reply; filing fees; attendance at the motion, etc).• Opposing counsel meet with a mediator for one hour in February, May and August to discuss progress made during the previous quarter and to identify additional information needed to reach a resolution. Thanks to the input and guidance of the mediator, counsel are able to directly negotiate a settlement in October without their clients having to attend a mediation.
Despite the widespread perception that a mediator’s role is to help the parties negotiate a settlement, retaining a mediator to manage conflict and litigation can be a cost-effective and efficient way to allocate limited resources in routine and smaller cases, making it easier to resolve those cases more quickly.
Finally, the practical and economic benefits that flow from the early resolution of disputes should not be overlooked. First and foremost, clients are generally more satisfied the earlier their claims are resolved, and satisfied clients usually lead to more referrals. Second, the cost of litigation is likely to be less whenever efforts to resolve a dispute are undertaken earlier in the process, which may make it easier to reach a settlement that will meet the client’s expectations. Third, the time value of money means that a smaller settlement today may be more valuable to the client than the same or a slightly larger settlement or verdict one or two years from now. Lastly, cash flow and overall profitability are likely to improve whenever disputes are resolved earlier in the litigation process.
In the final analysis, the best way to ensure justice for your client is to resolve his or her claim as early as you can, without compromising the outcome.
Whether or not you retain a mediator to help manage the litigation process, or adopt some of the other suggestions outlined in this article, always bear in mind that there are tools available to help you resolve your client’s lawsuit more efficiently, more cost-effectively and more quickly.
Put another way, it is never too soon to focus on dispute resolution, but it can sometimes be too late.
Floyd J. Siegal is a full-time neutral with Judicate West and is currently President-Elect of the Southern California Mediation Association (SCMA). He can be reached at firstname.lastname@example.org. He would like to thank SCMA past presidents Wendy Kramer and Joe Markowitz and SCMA’s current president Robyn Weinstein for their invaluable contributions to this article.
Copyright © 2020 by the author.
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