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A lawyer used to be measured solely by the number of cases won at trial. Today, a lawyer is also measured by the number and quality of case settlements. Mediation is a commonly used tool in all litigation and is a part of the fabric of the litigation process. Lawyers rely on it daily in an effort to obtain the best possible results for their clients. As sophisticated users of mediation, attorneys expect resolution. They want to settle their cases, and they want the mediator to stay involved in the process until a resolution is achieved. The key to mediation closure is persistence and flexibility on the part of all involved — the lawyers and the mediator. While attorneys prefer that a case settle during the mediation, if it does not, a mediator who follows up and continues to work with the parties not only earns the respect of the lawyers and parties, but will get the case resolved. Lawyers also have a duty to stay with the process. In some large mass tort cases, the clients have, in effect, formed a state department, a negotiating lawyer team, and a war department, the litigation team. Maintaining an ongoing dialogue with the lawyers and parties keeps the potential of settlement uppermost in their minds. In this day of e-mail and voice mail, it is easy and efficient to communicate with all parties in the mediation process. Continuing to put forth settlement proposals and counter-proposal concepts for the parties to consider can open their minds and keep them from getting too entrenched in their positions. A successful mediation is a joint effort using all the creativity of the lawyers and the mediator to bring about resolution. There are several strategies that may be implemented at various points of the mediation process that, in the end, will allow the parties to attain the settlement and closure they are seeking. DESPITE THE BEST EFFORTS OF THE PARTIES, LAWYERS AND MEDIATORS, THE CASE DID NOT RESOLVE. NOW WHAT? A settlement can still be had after the initial mediation session has ended. Given that 95 percent of all cases settle at some point prior to trial, the issue is when and how to get the case settled. KEEPING THE MEDIATION PROCESS GOING AFTER THE FIRST SESSION At the conclusion of a mediation session, it is helpful for the mediator to review with the parties what they have achieved. The goals are to leave each side with a clear vision of the other side’s case and to discuss ongoing settlement possibilities. The lawyers know the facts and the law, as well as the strengths and weaknesses of their cases and that of their opponents. A concise summary of the opposing party’s view may stimulate a re-evaluation process in the minds of the participants. Concluding with a detailed timeline — offers and counteroffers — against a backdrop of the facts of the case and the legal issues most important to each side can go a long way in reminding the parties how far they’ve come, and what they’ve learned about each participant’s motivation to settle. Setting a telephone status conference within two weeks keeps the mediation process alive. Lawyers, clients and mediators have a variety of tools at their disposal to get to closure. Some of the most effective methods are described in detail below. Lawyers can assist the mediator by suggesting creative ways of bridging the gap and by keeping an open channel to resolution. MEDIATING WITHIN A RANGE When the parties appear to be at an impasse, suggesting a range — and getting the parties to agree to those parameters — allows the parties to get over the impasse and keeps the process moving forward. For example, in an employment case where the plaintiff’s demand is $900,000 and the defendants are locked in at $100,000, suggesting the parties agree to mediate between $250,000 and $750,000 may break one logjam. Lawyers often participate by suggesting what ranges they will negotiate within. Parties can continue to mediate within ranges until they feel comfortable returning to standard back-and-forth negotiating. MEDIATOR’S PROPOSAL The art of the mediator’s proposal is to gather enough intelligence and information from all sides in order to arrive at the likely number, or alternative remedy, that will resolve the matter. Lawyers can help by indicating their belief as to the settlement value, although a mediator’s proposal is seldom reflective of the value of the case. It is simply a number that the mediator feels will cause each side to move and ultimately resolve the case. A proposal can be structured in a variety of ways. The mediator may simply propose a number that the parties can accept or reject. Alternatively, the mediator may present a written document that outlines each deal point to a resolution. Each side is given the opportunity to respond to the proposal — and mustrespond within a specified time frame, such as 48 hours. If all parties respond favorably, the case settles. All parties’ responses remain confidential, so if the proposal is rejected by either side, no one knows whether the other side would have accepted. However, it is important to remember that often a response, even if not completely favorable, opens the door for continuing dialogue. ABBREVIATED FOCUSED DISCOVERY PROCESS Sometimes during mediation it becomes apparent that the lawyers are having a difficult time evaluating the case because crucial information, such as damages proposals or other financial information, is missing. In a situation where discovery needs to be conducted, an effective way of keeping the mediation process on track is to persuade the lawyers to agree on an abbreviated focused discovery schedule, to be followed by an additional mediation session. The lawyers can agree to exchange financial information, take a select number of critical depositions and then return to the table. TELEPHONE DIPLOMACY The mediator and counsel often work together to fashion a detailed settlement approach. Numerous conference calls may be necessary to relay information to the parties and to obtain missing information. For example, in a class action where there are insurance coverage issues and coverage counsel, as well as defense counsel, it is often necessary to coordinate all their efforts. Occasionally a separate mediation dealing only with coverage issues needs to precede efforts to fashion a global settlement. While a global settlement is usually the ultimate goal, sometimes it is necessary to select preliminary pieces of a case to be resolved first. For example, in a multi-party construction case it may be effective to settle with the minor players as opposed to the major players and then work on resolving the case piece by piece, moving toward resolving the entire matter. EMPLOY ALTERNATIVE ADR PROCEDURES Sometimes it is helpful to employ other alternative dispute procedures such as arbitration or mini-trials. Creative lawyering can be of great assistance in suggesting alternative ADR procedures. For example, in an insurance coverage case, it is sometimes useful to suggest that a particular coverage issue, such as allocation issues among carriers, be arbitrated. Once the arbitration is completed, the mediation process can continue. Another example of an isolated issue that affects the outcome of a case is a statute of limitations question. If that issue is resolved through a mini-trial, the parties may return to the mediation table with more certainty. An exchange of expert reports or a facilitated expert meeting will frequently move the process ahead. Another approach is to mediate to a point where both sides agree on a high/low number and then arbitrate. Catherine A. Yanni, who is an ADR expert with JAMS in Northern California, has extensive experience as a mediator, arbitrator, special master and discovery referee. She can be reached at [email protected]. • Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact News Editor Candice McFarland with submissions or questions at [email protected]or go to www.therecorder.com/submissions.html.

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