Issue: December, 2006
Author: Amy B. Jenkins
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Mediation is generally defined as a voluntary, non binding process in which a neutral third party facilitates communication between the parties and their attorneys to explore settlement possibilities in a creative and collaborative fashion. The mediator has no authority to impose a settlement, but explores the strengths and weaknesses of each party's case to move them toward a mutually acceptable resolution of the dispute. National statistics indicate that approximately 85% of the matters mediated are settled in one session or shortly thereafter.
Mediation often succeeds when more traditional approaches to settlement are unsuccessful in resolving the dispute. A key component in the success of mediation is the participation of the parties and their attorneys. This participation also insures that the parties are satisfied with the resolution, committed to settlement and are much more likely to abide by the terms of the settlement agreement.
Mediation is attractive because it is essentially risk free. Since the process is voluntary, confidential and non binding, there is little to lose in participating. The clear benefit of the possibility of settlement far outweighs any perceived risk of exposing one's client or theories to informal discovery. This is particularly true in light of the confidentiality protection. Even if the matter does not settle at the mediation, the parties are better focused on the issues in dispute and are able to formulate cost effective discovery and trial plans.
A mediation session is typically conducted in an informal setting, such as a conference room in a law office. The rules of evidence and procedure are not enforced, so the parties have the opportunity to communicate directly to discuss the issues in an open, yet controlled and structured setting. Communications made during the course of the mediation are confidential, and the participants will sign a confidentiality agreement to that effect prior to the mediation.
The amount of preparation by the attorney varies in each case depending upon the complexity of the legal issues and the level of emotions of the parties. Attorneys will often submit confidential materials to the mediator in advance of the mediation.
The attorney and the client will also generally be given the opportunity to make a presentation in the initial joint session of the mediation with all of the participants present. This is a unique opportunity to share different perspectives and educate the other side and should not be confused with a closing argument at trial. It is most effective when done in the style of an opening statement, keeping in mind that the goal of the mediation is to explore settlement opportunities. Overly aggressive or adversarial presentations set a negative tone for the mediation and can be counterproductive.
Client preparation is a critical component of a successful mediation. Advising the client that the mediation process is less adversarial than trial is important so that the client understands that the focus is on exploring settlement, not on winning the case. The client should understand the difference between mediation and litigation, and that the mediator is not empowered to decide the dispute or determine who is right or wrong.
It is also important for the client to know that there will be an opportunity to make a statement if he or she chooses. There is often a cathartic effect for the client to tell his/her story in his/her own words in a controlled, confidential environment.
Because mediation contemplates a full, complete and candid discussion of the issues, it is important for clients to appreciate the role of confidentiality and that anything that is said in mediation cannot be the subject of cross examination at a trial if the matter is not resolved. Equally important is the fact that the mediator cannot be subpoenaed to testify at a trial as to what was said in mediation.
Caucus and Separate Meetings
A caucus, or separate meeting with the mediator is very common, particularly in mediation of commercial cases. Family law cases may involve fewer caucuses, but caucuses may be utilized at the discretion of the mediator. These separate meetings are confidential and the mediator will not disclose anything that he or she is asked to keep confidential. The mediator using a shuttle diplomacy model will exchange information that the mediator is authorized to share, as well as exchanging offers and counter-offers.
The mediator will likely engage in reality testing in the separate caucuses. Questions which may be asked include: What are your strengths? What are your concerns? How much will it cost to try this case? What is the likelihood of success? It is important for the client to understand that the mediator may function as a “devil’s advocate.” Unless otherwise advised, clients may incorrectly assume that the mediator is taking sides if he or she raises questions about positions taken in the litigation.
A decision tree is a very helpful tool that can map out the various possible outcomes to help evaluate the case. To begin a decision tree analysis, participants identify the possible paths that a given case may take. It is most appropriate for each party to construct the decision tree in caucus since this will involve consideration of the likelihood of success at various stages such as summary judgment motions and at trial. Next, there is an estimate of the cost to reach the possible outcomes including attorney’s fees and expenses. Lastly, there is an estimate as to the likelihood of success of all of the possible outcomes.
A decision tree analysis is a helpful tool in evaluating cases, but is not a precise formula that can predict, with certainty, the outcome of any case. Because it relies on rough estimates about future events, it does not take into consideration more qualitative factors such as jury demographics, political conditions or how each witness will present to the jury. In a caucus the mediator will discuss these qualitative factors to be considered in evaluating the case for settlement.
Mediation works because it brings the parties together and gives each an opportunity to "have their day in court" without the expense and delay involved in litigation. It allows the parties to preserve their relationship and explore settlement in a creative way that meets the needs of all involved. The traditional litigation process does little to vent emotions or dispel misperceptions between the parties, but instead can polarize the positions through the litigation process. Mediation focuses on the benefits of resolution and provides for the cost effective and expeditious resolution of disputes.
Since devoting her legal practice to mediation in 1992, Amy B. Jenkins has mediated a wide variety of cases addressing virtually every type of civil dispute, from small two-party matters to complex multi-party litigation. She has mediated cases in areas such as personal injury, employment matters including sexual harassment, discrimination and wrongful termination, real estate, products liability, lender liability, medical and legal malpractice.
Amy began her career with the law firm of Paul, Hastings, Janofsky and Walker in Los Angeles handling business and commercial litigation. She then served a Vice-President of Litigation for MGM/UA Communications Co. and was responsible for all domestic and international entertainment litigation for that company. She moved to San Diego where she supervised litigation for The Price Company and designed a dispute resolution system for the self-insured company.
Amy has extensive experience in providing mediation training. She has taught Alternative Dispute Resolution and Mediation courses at two ABA accredited law schools and Business Law at the undergraduate level. She has authored a number of articles, conducts independent investigations as a Neutral Fact Finder and serves as a Facilitator for group meetings and retreats. She is currently the Chairperson for the Albany County School District One, Board of Education.
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