X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In 1995, after 16 years as a trial lawyer and 10 years as a D.C. Superior Court judge, I retired from the bench to try my hand at a third career — that of an “ADR neutral.” (That’s the somewhat wimpish term for those of us who work as mediators, arbitrators, neutral case evaluators and special masters.) After more than six years on the job, my calendar provides a snapshot of how ADR looks from up close. Here’s a recent week. MONDAY: COMMERCIAL MEDIATION At 9 a.m., counsel and clients in a commercial case arrive at my office for mediation. The case arises out of the termination of a five-year service contract for allegedly unsatisfactory performance by the contractor, who has asserted a multimillion-dollar wrongful-termination claim. There are a host of factual and legal disputes. In premediation conference calls with the parties’ very experienced counsel, we all agreed that beginning the mediation with traditional opening statements would be a waste of time (since all attendees would be very familiar with the issues) and possibly counterproductive (since such statements often increase resentment and polarization between parties). Instead, we decided to begin by jointly discussing a series of key questions I would ask the parties to address. Over the weekend, I have analyzed the premediation submissions. In the morning, I lead the parties through a nonrancorous conversation about the pros and cons of several issues. I have carefully picked, as initial issues, items on which I sense that each side will be willing to compromise, thus building mediation momentum through some early successes. As lunch arrives — with the help of some humor — we are making good progress. During the afternoon, I privately explore possible compromises with each side. “If I could get them to agree to this,” I ask one side, “would you be willing to agree to that?” “Yes,” comes the savvy response, “but you cannot tell them that. It must appear that the idea for this compromise originated with you.” By 5 p.m., we have nailed down several key agreements, contingent on reaching an overall settlement. We agree to recess so that counsel can gather and exchange information on some additional matters, then reconvene in two weeks. The parties and I feel confident that the matter will settle at that second day of mediation. (And, indeed, it does!) TUESDAY: PHONES AND PLANES The work of an ADR neutral requires a lot of conference calls, so I try to reserve at least one day a week for this. After reviewing the mail, I settle down to make the calls which have been prearranged by Stacey, my ever-efficient case manager. At 10 a.m., it’s the initial call on a new case. Counsel give me a quick overview of the case. I ask if they have discussed what sort of mediation process would be most promising. What are the principal obstacles to settlement? What sort of information needs to be exchanged? What kind of mediation submissions should we have and when can they be served? Who should (and should not) attend the mediation? What role should I play — facilitative, evaluative or some combination of the two? How many days should we reserve for the mediation? Counsel, who understand both ADR and civility, have sensible, agreed answers to most of these questions, and we quickly fill in the gaps on a few incidental items. Then everyone gets out their calendars and we work out a schedule for assembling a set of core exhibits, exchanging mediation briefs (which lay out the principal arguments each side will press if the case doesn’t settle), and submitting to me ex parte letters (which privately disclose where each side may have greater flexibility and alert me to any “hot button” issues or hidden agenda). We reserve two days the next month for mediation, with a possible third day later if necessary. I confirm the arrangements and schedule in a one-page fax. At noon, I have a discovery conference call in a securities arbitration case where I serve as chair of a three-arbitrator panel. The case involves a $48 million claim by a customer against a major brokerage firm. The lawyers have agreed to an eight-day arbitration hearing in Pittsburgh. But a few disputes remain. The claimant customer wants more discovery, and the respondent brokerage firm wants less. Sound familiar? With the wisdom of Solomon and aid of the National Association of Securities Dealers’ Discovery Guidelines, I decide that there will no depositions, but expert reports will be exchanged a month before the hearing. (One advantage of arbitration, which greatly reduces the need for depositions, is the ability to recess a hearing and let counsel gather evidence to meet some truly unexpected evidence from the other side, something I could not readily do with a jury in the box eager to complete a trial.) Both sides are satisfied with the ruling, which I quickly confirm in a one-page (my rule-of-thumb page limit) fax. At 2 p.m., I initiate calls to opposing counsel in one of my longest-running matters. The case originated (for me) more than a year ago, when I mediated a False Claims Act suit brought by the U.S. Department of Justice against a large East Coast health care provider for allegedly overbilling Medicare. (Yes, even the federal government uses alternate dispute resolution.) A mediation of several days produced a settlement, then a bankruptcy filing spawned a second mediation and a second settlement. Now the case has returned to me to serve as a “settlement monitor” to implement the deal. My first task is to get agreement on the principal amounts of certain substitute notes to be provided to one secured lender (in Cincinnati) by certain parties (in Pennsylvania) who have taken over part of the provider’s operations. After a day of mediation in my office and exchange of several letters, the gap between the parties concerning what the note amounts should be has gotten much smaller, but has still not closed. In follow-up calls, I realized that both sides truly want a resolution and want me to act as a “negotiation coach,” to help them each craft offers and counteroffers that will gradually get us to an end point. Today, I call one attorney to convey the latest offer of the other, sympathize that the offer wasn’t more generous, and suggest how he might most productively respond. After getting a commitment to provide a counteroffer within one week, I call to confirm that the offer has been conveyed, and will be responded to within a week. (This matter, in fact, settled one week after this call.) At 4 p.m., I head to Dulles Airport to catch a 6 o’clock flight to Dallas. WEDNESDAY: A NEUTRAL EVALUATION Last month I conducted a mediation in a $25 million case involving claims of misrepresentation and breach of warranty in a leveraged buyout of a high-tech Texas company. The counsel for buyer and seller, located in New York and Los Angeles respectively, chose Washington as a neutral venue for mediation. In two mediation sessions, the gap between the buyer’s settlement demand and the seller’s offer narrowed considerably, but both parties had moved as far as they were willing to go. The case, which turns on the testimony of three or four critical witnesses on each side, is poised to begin expensive and protracted arbitration in New York, which neither side wants. After trying other options, I propose the following: I will spend one day in Dallas (where all witnesses are located) interviewing — confidentially and alone — three witnesses on each side. Based on those interviews, I will report to both sides on how I think the arbitration will likely come out, and will propose a take-it-or-leave-it settlement number. Each party will have 24 hours to tell me if they accept or reject my proposal. If both sides accept, I will tell them the case has settled at that number. If one or both sides reject the proposal, I will simply advise that the case did not settle. (Thus, one side’s willingness to move off its present position will remain a secret if the other side refuses to move from its.) Both sides accept the plan. This procedure, though somewhat novel, is a form of Neutral Case Evaluation, which includes a range of procedures by which neutrals evaluate various issues in a case. The process — based on mediation briefs, mock oral arguments, live testimony or interviews — provides the parties with an in-depth but nonbinding evaluation that hopefully will stimulate a voluntary settlement. On the plane ride from Washington, D.C., I reviewed the file, including interview questions supplied by counsel, and prepared my plan for the interviews. This morning, I proceed to a conference center at the Dallas-Fort Worth Airport for the witness interviews. Like clockwork, the witnesses appear shortly before each hour from 9 a.m. to 3 p.m. Assured that I will not attribute their comments to any particular witness, they are candid, forthright and generally credible. With some minor, unsurprising variations in emphasis, their accounts are remarkably harmonious. The picture that emerges is clear, plausible and consistent with the documents, although not exactly as either side had portrayed it during mediation. On the evening flight back to Washington, D.C., I review my notes, analyze what I have learned and prepare a report to counsel, including a proposed settlement number. THURSDAY: A LONG FLIGHT Some years ago, a number of parties purchased tracts of land along the Baltimore-Washington Parkway for later development. By the mid-1990s, development had begun on the largest shopping mall in Maryland history, and one of the largest in the nation. Many parties and many millions of dollars were involved. Predictably, disputes arose and produced increasingly hostile wrangling. One dispute involved a claim by the seller of a large tract who asserted that it was entitled to terminate a purchase contract (and thus retain the now very valuable land) because of the purchaser’s alleged failure to fulfill certain development responsibilities under a related agreement. The purchaser denied such failures and raised a myriad of legal and factual defenses. The parties to this purchase agreement had included in their contract a provision for final and binding arbitration. I was selected as the arbitrator. Pursuant to an initial conference call and schedule, the matter proceeded through abbreviated discovery and several days of evidentiary hearings. Now, following post-hearing briefing, the day for final arguments has arrived. At 9:30 a.m. numerous attorneys and clients crowd into a D.C. conference room. Each side has 90 minutes to make uninterrupted presentations. Over the lunch break, I grab a sandwich and call into a conference number at 1 p.m. to give to counsel in the Dallas case my report and settlement proposal. Counsel listen intently to my 30-minute summary of how I think the case will turn out and why, then agree to let me know separately, within 24 hours, if their clients will agree to my settlement proposal. At 2 p.m., the arbitration argument resumes. I go through a series of questions, based on review of the briefs and the morning presentations, and give each side a full opportunity to address each question. By 5 p.m., we’re done. I thank counsel and promise to issue a decision as promptly as possible. (Arbitration rules normally require me to issue an award with reasons within 30 days.) Thus, a complex, high-stakes conflict, which probably would have dragged on, at great cost, for five years or more in litigation, is resolved in less than a year through arbitration. That represents a lot of time, but it represents even more time saved. FRIDAY: GOVERNMENT MEDIATION This morning I begin mediation of a case brought by the Department of Justice (on behalf of the Environmental Protection Agency) to recover costs of cleaning up a former oil refinery site in a Southeastern state. The case is pending in federal court there, and the EPA and three private parties have agreed to mediation. On the first of several days we’ve scheduled, we begin with a presentation by a defendant on why the EPA’s costs were supposedly excessive and inconsistent with the National Contingency Plan (which governs environmental cleanups). By lunchtime, all other parties ask for some time to withdraw separately and discuss what they have heard. While these discussions are starting, I check my voice mail messages and am delighted to learn that both sides in the Dallas case have accepted my settlement proposal. I call Stacey and dictate a quick fax to the parties confirming that settlement has been reached and offer to assist with any issues that might arise in drafting the settlement documents. I then go around to meet with each of the four parties in today’s mediation. Government counsel indicate they have heard some things this morning that they need time to check out. Counsel for other parties have no objection to a mediation recess, but want the government to produce certain additional information. I spend the afternoon shuttling between the four camps to devise a plan and schedule for exchange of additional information and resumption of mediation as soon as possible. (In other cases, I’ve had to coordinate with dozens of parties and lawyers.) No one wants to lose momentum, but it is difficult to find a two-day block of time that is available to the 15 attorneys and client representatives. After I cajole people to shift less critical engagements on their calendars, we finally clear the time. I bring everyone back into the main conference room to recite what has been agreed to regarding further document production and mediation, and get confirmation by all that this is acceptable. I promise to confirm everything by fax on Monday. I encourage people to be a little patient and convey my (honest) belief that we have a good chance of settling when we convene next time. IN REVIEW This week’s account provides a glimpse into how ADR is really conducted and how creative clients and lawyers are embracing its possibilities. Plainly, ADR will not, and should not, displace traditional courts. But ADR can provide a valuable, complementary venue, almost “a parallel universe,” where parties may, if they wish, utilize well-recognized litigation alternatives (like mediation and arbitration), or even invent new alternatives, and choose their own “ADR neutrals” to conduct the proceedings. The prospect of charting such new terrain is both exhilarating and a bit daunting. Just what a gray-headed professional at midlife (well, perhaps a little beyond) needs to get the juices flowing again. Curtis von Kann is an ADR neutral in the Washington, D.C., office of JAMS, a nationwide ADR company. His e-mail address is [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.