A D I G EST

I -- I

L t er nat ive s TO THE HIGH COSTS O F LITIGATION

NEUTRALS SKILLS ADR parties need to have a forceful, purposeful neutral, according to San Diego practitioner Gregg F. Relyea. He describes specifically where you need your mediator to be tenacious, and how you can find a suitable candidate. .......................... Page 1 5 1

COMMENTARY Jeff Kichaven, a Los Angeles ADR neutral, advocates the use of mediator evaluation. H e argues that evaluation is a market- and justice- driven necessity. ............... Page 151

CPR NEWS A panel of neutrals specializing in trademark disputes, formed by CPR and the International Trademark Association, has been expanded this month. The names locations, and affiliations of all 54 panel members are listed. ........................... Page 152

THEORY TO PRACTICE In a special feature, Seamus Dunn, a professor of conflicts studies from Northern Ireland’s University of Ulster, discusses transferring political ADR techniques to social and business conflicts. Dunn frames his argument around the Northern Ireland conflict, and the path undertaken by the 1998 Good Friday Agreement. ............ Page 153

ADR BRIEFS The move to overturn the Circuit City case has begun in Congress. Also, details on a new report on federal government ombudsmen, and an ADR award is inaugurated in New York. ......................... Page 163

DEPARTMENTS CPR News ........................ Page 152 ADR Briefs ....................... Page 163 Cartoon by Cullum .......... Page 163 Index Info ............. Page 164 & 168 Online Info ........... Page 164 & 170

CPR INSTITUTE FOR DISPUTE RESOLUTION VOL. 19 NO. 6 JUNE 2001

Parties Need Mediators With Personal and Professional Tenacitv

J

BY GREGG F. RELYEA Parties generally have the freedom to select a mediator, which is one of the distinctive fea-

tice, the selection of a neutral mediator often is the product ofa casual hallway conversation with a friend or colleague about who is good.

tures, and greatest opportuni- ties, of private mediation. The mediator can be a significant factor in achieving settlement, but only where there is a dem- onstrated personal commitment to resolution and the ability to use professional resources to break through negotiating im- passes. One of the most reliable

NEUTRALS‘ SKILLS

This kind of informal ref- erence does not address critical issues concerning the mediator‘s record of securing agreements during mediation or afterward, ability to use impasses to sharpen the definition of the parties’ underlying interests, or inventiveness concerning pos- sible solutions. A casual ap-

predictors of mediator effectiveness can be summed up in one word-tenacity.

For people using mediation, it has become apparent that individuals holding themselves Out as mediators offer a wide variety of skill levels, training, and personal qualities. In prac-

proach to a mediator selection can lead to a neutral who lacks the personal qualities and professional skills to consistently produce re- sults for the parties.

As the alternative dispute resolution field (continued on page 165)

Adding Value: Malung the Strongest Case for Evaluation BY JEFF KICHAVEN “You know as well as we do that right, a the worldgoes, is only in question between equals inpower, while the strong do what they can and the weak suffer what they must.” -Athenian envoys i n negotia- tions wi th Melos, as quoted i n

tiation, why would it ever volunteer for a pro- cess designed to have that power taken away, or “balanced?”

As long as lawyers are duty-bound to pro- vide clients with zealous advo- cacy within the bounds of law, we could never ethically submit

Thucydides, The Peloponnesian WE.

The marketplace for mediation . a . CO M M E NTA RY

a client to that kind of emascu- lation. As long as the legal com- munity is the marketplace for mediation services, mediation will accommodate, not distort, the reality of the litigating par- ties’ true relationship.

And that‘s why there must be an evalua- tive component to mediation. And it‘s a good

(continued on page 169)

of litigated commercial disputes respects the reality of the quote above.

Gone is the utopian pablum once heard about balancing power between the sides. The marketplace wouldn’t stand for it. If a party feels that it has some power in the nego-

(continued from front page) thing. Only the evaluative mediator provides the lawyer with the help that lawyers need to protect client relationships and provide cli- ents with the best possible representation. It is only the evaluative mediator who prevents the strong from doing any more than they can, and the weak from suffering any more than they must.

The ways and means of evaluation that attorneys demand of mediators are not what one might think. The conventional wisdom is that “evaluative mediation” looks like a cari- cature of a courthouse settlement conference: Some better-or-worse-prepared judge-or mediator-rants about how bad your claim or defense is, and then berates you into an unprincipled compromise.

SUBTLE C H A L L E N G E O n the ground with real lawyers and real cli- ents in real cases, though, that‘s not the service which lawyers typically demand or which mediators generally provide. Lawyers gener- ally do not need or ask mediators to go across the hall and tell the other side what a bad case they have. The challenge is much more subtle.

Perhaps the most praiseworthy evaluative technique helps lawyers prevent clientffrom suffering more than they must. It is most com- monly used in a private caucus with the plaintiff‘s side, but sometimes with the de- fendant as well. Here is a paradigmatic case:

A lawyer accepts the representation of a plain- tiff in a wrongful termination suit, confident that the claim has merit. Discovery shows oth- erwise. The defense files its summary judgment motion. The plaintiffs counsel sees the hand- writing on the wall, but the client doesn’t-yet. The mediation takes place on a Wednesday five days before the motion will be heard.

The plaintiff’s counsel has fears, and needs help. She wants to save face with the client, whose expectations she probably helped engender. She does not want to an- ger or shame the client, who likely did not tell the attorney upfront all of the facts on which the pending motion is based. The at- torney does not want to bear the client‘s gaze when she adds up the taxable costs that the defendant could be awarded. A modest

Jeff Kichaven, an independent mediator i n Los An- geles, i s a Fellow of the International Academy of Mediators and an Adjunct Professor at Pepperdine University School of Law. An earlier version of this article appeared in the April 7, 2000, issue of the Los Angeles Daily Journal.

settlement is better than a dismissal, and could be within reach.

ENTER T H E M E D I A T O R The bottom line is that this lawyer does not want her client to suffer more than she must. The at- torney needs help brealung some bad news to her client, and fast. Enter the mediator.

Evaluative mediation? To be sure. The mediator’s thorough explanation of Monday’s likely outcome is precisely what is on the way. It‘s precisely what the lawyer wants the media- tor to do. It‘s precisely what the plaintiff needs to hear. And there’s nobody else to do it.

To be equally sure, the plaintiff retains autonomy and can reject an available, mod- est settlement, ifshe so chooses. But she rarely does. Half a loaf really is better than none, and most plaintiffs choose to avoid the risk

Thorough explanations

of likely outcomes are the way

to go.

of liability for the defendant‘s costs, which could bankrupt them.

In one such case this author left a media- tion session for a bar association dinner, which also was attended by the judge before whom the just-settled case was pending. Told that the mediation in the case had been completed and that the case had settled, the judge’s jaw dropped and her eyes opened wide. She was ecstatic, and exclaimed, “Thank God! I was not looking forward to seeing the look on that woman’s face on Monday when I dis- missed her case.”

That‘s as good as it gets for mediators in a business case. That good came solely from evaluation.

But what does it mean for a mediator to prevent the strong from doing any more than they can? Consider another paradigm case: A defendant in employment litigation confronts a plaintiff blinded by rage, confident that she will never work again, and convinced that a racial animus is behind life’s every setback.

The plaintiff‘s counsel views the world the same way. The defendant‘s conduct, while ambiguous in some regards, is not too shabby overall. The case is probably a winner, but not on summary judgment. Litigation prom- ises to be nasty, brutish and long.

This defense lawyer also has fears and needs help. He feels good about his chances of winning the battle with a defense verdict. But he risks losing the client relations war, because the delay, inconvenience and expense of litigation will almost surely leave his client bitter. This lawyer may not be able to settle the case before extensive and expensive dis- covery. How much is his client at risk, in terms of leveling his wrath not only at the plaintiff‘s side, but at his own lawyer as well? This law- yer needs help making sure that his client directs his unhappiness at the plaintiff, where it belongs, not at the own lawyer, where it does not. Again, the mediator adds value.

VALUE OF THE O P E N I N G SESSION In mediation, the clients typically sit together in an opening joint session, and may deal with each other face-to-face at various other times during the day. The defendant gets to see, with his own eyes, just what he and his lawyer are up against. This case may not settle. Yet from the standpoint of the defendant and his law- yer, the process may be highlyworthwhile. One silver-haired elder statesman in a downtown high-rise described a similar case in terms with terms he clearly didn’t use often: “We didn’t settle, but for my client and me it was, well, er, uh, a . . . a . . . bonding experience.”

He went on to emphasize the mediator’s evaluative technique. In a caucus, the media- tor initiated discussions of what the litiga- tion would cost, how long it would take, and how unavoidable it was, as the only alterna- tive was to pay a demand that the client con- sidered extortion.

The most critical point? The mediator confirmed the lawyer’s evaluation of the case. While this mediator did not prevent litiga- tion from proceeding, he did prevent the unnecessary deterioration of an attorney-cli- ent relationship. The case had to be defended, and the client understood exactly why.

With these and other evaluative tech- niques, mediators can and will prevent the strong from doing more than they can, and the weak from suffering more than they must. Who is to say that is not a legitimate defini-

* tion of justice? - 11111