Advocacy in ADR

In all types of personal injury litigation, this scenario is happening more frequently: Discovery is complete, expert reports have been exchanged, settlement appears unlikely, and the case is headed to trial. Someone suggests mediation, or if settlement is not possible, a resolution through binding arbitration. Counsel must now prepare a presentation different from one before a jury, and determine what evidence to present and how best to present it. Most importantly, counsel's presentation is to an audience much different from a jury: an arbitrator or mediator.

This article discusses issues counsel must be aware of to be effective advocates in alternative dispute resolution. We will give a mediator and arbitrator's perspective on these issues. These include, at mediation, what evidence, if any, should be presented, to whom; and what other information can or should be presented. At arbitration, they include matters such as whether expert testimony should be introduced through reports or live testimony. Finally, the article addresses how counsel can effectively represent their clients while still meeting goals of reducing the time and expense of trial.

Have the Decision-Makers Present

The purpose of mediation from the mediator's perspective is to bring the parties together and resolve the case. For mediation to have the best chance of success, it is usually essential that the decision-maker(s) for each party be present. In their presentations, counsel try to impress the other side with the merits of their case, the weakness of the opponent's case, and the benefits of settling. If the parties' decision-makers are not present, effectiveness is reduced.

In a typical personal injury case, it is often assumed that the decision-maker for the plaintiff's side is the plaintiff herself, or that plaintiff's counsel controls the client. However, in many extremely serious cases, this is not true. For example, in a death case, the surviving spouse may be the plaintiff, but another family member (an adult child, for example) may be advising the plaintiff, and may actually control the decision. In a child death case, one or the other parent might be the real decision-maker for reasons not immediately apparent to opposing counsel. Frequently, during the initial private caucus with the defendants' representatives, the first question asked of the mediator is, “Who is the decision-maker on the other side?” The identity of the real decision-maker can affect the approach of the defendants and the mediator.

It is important that the defendant's decision-makers be present, and not merely available by phone. Evaluation of the plaintiff as a witness can be difficult to convey by phone. If the plaintiff's side makes an impressive presentation during an initial joint session, having the decision-maker present can make all the difference.

For an insurance carrier or corporate defendant, the term “decision-maker” means the individual with sufficient authority to settle the case within the reasonably anticipated range. Having an adjuster with limited authority present defeats the purpose. Defense counsel often express concerns about recommending an increased settlement offer to an adjuster who is not present. When the appropriate decision-maker is present, this concern is substantially reduced, as the mediator is the one questioning positions, raising issues, and making recommendations.

Help the Mediator

The more information counsel provides the mediator before the proceeding, the more effective the mediator can be. Sending the mediator pleadings, depositions, expert reports, motions and briefs is helpful, but mediators welcome information that will help them understand the underlying issues in the case. If there are underlying needs and concerns not apparent from the cold recitation of the facts, providing the mediator with that information may go a long way in helping to resolve the case.

For example, counsel's thoughts on why negotiations have broken down can provide important insights, and help the mediator adopt a different approach. If one of the parties has an unrealistic view of either liability or damages, providing that information and counsel's evaluation to the mediator can help the mediator discuss those issues in caucus.

Counsel can also help the mediator understand his or her own client. If the client is maintaining a rigid position, alerting the mediator to the perceived reasons for this can help the mediator engage the client in a meaningful discussion. It is important that the mediator have an understanding of the client's anger, resentment, regret, expectations and hopes. If the mediator understands these areas, it may be possible for him to work with the other side and create solutions that add meaning and value to the proposed resolution. Counsel can (and should) agree that both sides can submit a confidential memorandum discussing these issues.

Lines in the Sand

In a personal injury or medical malpractice mediation, each side often begins negotiations with unreasonable opening bids. While both sides are entitled to test their position and that of the other side, starting with totally unrealistic demands or offers serves mostly to frustrate the process. Each side becomes angry or discouraged by the other's position, and it becomes harder for the parties to move into a zone where true negotiations can begin. If an extreme position must be adopted initially, counsel should be prepared to move at a reasonable rate toward figures that can achieve resolution.

If it appears impasse has occurred on a dollar amount, there may be other, non-monetary areas where agreement and accommodation are possible. A decision about those areas may reduce tensions, and permit further discussion about monetary issues. Counsel should avoid drawing any firm line in the sand, or adopting an absolute position. The mediator is trained never to give up, and counsel should adopt a similar attitude.

Joseph F. Ricchiuti, a member of this newsletter's Board of Editors and a founding member of Young Ricchiuti Caldwell & Heller, represents plaintiffs in civil litigation with an emphasis on products liability, medical malpractice and insurance bad faith. In addition to his trial practice, he is frequently selected as a mediator and arbitrator in many types of complex personal injury litigation. He can be contacted at [email protected] or 267-546-1002. This article also appeared in The Legal Intelligencer, an ALM sister publication.

In all types of personal injury litigation, this scenario is happening more frequently: Discovery is complete, expert reports have been exchanged, settlement appears unlikely, and the case is headed to trial. Someone suggests mediation, or if settlement is not possible, a resolution through binding arbitration. Counsel must now prepare a presentation different from one before a jury, and determine what evidence to present and how best to present it. Most importantly, counsel's presentation is to an audience much different from a jury: an arbitrator or mediator.

This article discusses issues counsel must be aware of to be effective advocates in alternative dispute resolution. We will give a mediator and arbitrator's perspective on these issues. These include, at mediation, what evidence, if any, should be presented, to whom; and what other information can or should be presented. At arbitration, they include matters such as whether expert testimony should be introduced through reports or live testimony. Finally, the article addresses how counsel can effectively represent their clients while still meeting goals of reducing the time and expense of trial.

Have the Decision-Makers Present

The purpose of mediation from the mediator's perspective is to bring the parties together and resolve the case. For mediation to have the best chance of success, it is usually essential that the decision-maker(s) for each party be present. In their presentations, counsel try to impress the other side with the merits of their case, the weakness of the opponent's case, and the benefits of settling. If the parties' decision-makers are not present, effectiveness is reduced.

In a typical personal injury case, it is often assumed that the decision-maker for the plaintiff's side is the plaintiff herself, or that plaintiff's counsel controls the client. However, in many extremely serious cases, this is not true. For example, in a death case, the surviving spouse may be the plaintiff, but another family member (an adult child, for example) may be advising the plaintiff, and may actually control the decision. In a child death case, one or the other parent might be the real decision-maker for reasons not immediately apparent to opposing counsel. Frequently, during the initial private caucus with the defendants' representatives, the first question asked of the mediator is, “Who is the decision-maker on the other side?” The identity of the real decision-maker can affect the approach of the defendants and the mediator.

It is important that the defendant's decision-makers be present, and not merely available by phone. Evaluation of the plaintiff as a witness can be difficult to convey by phone. If the plaintiff's side makes an impressive presentation during an initial joint session, having the decision-maker present can make all the difference.

For an insurance carrier or corporate defendant, the term “decision-maker” means the individual with sufficient authority to settle the case within the reasonably anticipated range. Having an adjuster with limited authority present defeats the purpose. Defense counsel often express concerns about recommending an increased settlement offer to an adjuster who is not present. When the appropriate decision-maker is present, this concern is substantially reduced, as the mediator is the one questioning positions, raising issues, and making recommendations.

Help the Mediator

The more information counsel provides the mediator before the proceeding, the more effective the mediator can be. Sending the mediator pleadings, depositions, expert reports, motions and briefs is helpful, but mediators welcome information that will help them understand the underlying issues in the case. If there are underlying needs and concerns not apparent from the cold recitation of the facts, providing the mediator with that information may go a long way in helping to resolve the case.

For example, counsel's thoughts on why negotiations have broken down can provide important insights, and help the mediator adopt a different approach. If one of the parties has an unrealistic view of either liability or damages, providing that information and counsel's evaluation to the mediator can help the mediator discuss those issues in caucus.

Counsel can also help the mediator understand his or her own client. If the client is maintaining a rigid position, alerting the mediator to the perceived reasons for this can help the mediator engage the client in a meaningful discussion. It is important that the mediator have an understanding of the client's anger, resentment, regret, expectations and hopes. If the mediator understands these areas, it may be possible for him to work with the other side and create solutions that add meaning and value to the proposed resolution. Counsel can (and should) agree that both sides can submit a confidential memorandum discussing these issues.

Lines in the Sand

In a personal injury or medical malpractice mediation, each side often begins negotiations with unreasonable opening bids. While both sides are entitled to test their position and that of the other side, starting with totally unrealistic demands or offers serves mostly to frustrate the process. Each side becomes angry or discouraged by the other's position, and it becomes harder for the parties to move into a zone where true negotiations can begin. If an extreme position must be adopted initially, counsel should be prepared to move at a reasonable rate toward figures that can achieve resolution.

If it appears impasse has occurred on a dollar amount, there may be other, non-monetary areas where agreement and accommodation are possible. A decision about those areas may reduce tensions, and permit further discussion about monetary issues. Counsel should avoid drawing any firm line in the sand, or adopting an absolute position. The mediator is trained never to give up, and counsel should adopt a similar attitude.

Joseph F. Ricchiuti, a member of this newsletter's Board of Editors and a founding member of Young Ricchiuti Caldwell & Heller, represents plaintiffs in civil litigation with an emphasis on products liability, medical malpractice and insurance bad faith. In addition to his trial practice, he is frequently selected as a mediator and arbitrator in many types of complex personal injury litigation. He can be contacted at [email protected] or 267-546-1002. This article also appeared in The Legal Intelligencer, an ALM sister publication.