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Litigation & Arbitration

Nov. 8, 2017

Litigation & Arbitration Q&As

Litigators pose piercing questions about the industry and arbitrators and mediators rose to the challenge with thoughtful and illuminating answers.

Q a online

Hon. Richard Aldrich (Ret.)

JAMS

Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A: Today, civil courts are bogged down with litigation. In the Los Angeles Superior Court, I am told, that it takes as long as six months to have a demurrer heard in the court to which the case is assigned. The benefit of private arbitration is to afford the parties with timely and appropriate case management. An effective arbitrator will bring the parties together early to plan discovery, dispositive motions, and avoid the necessity of protracted law and motion practice. Definitive goals should be set by the arbitrator at the outset of the case and definite time limits should be set so that all parties can anticipate and plan for an arbitration date at the earliest practicable time. In the meanwhile, an effective arbitrator may, with the approval of all parties, effectuate various ADR modalities such as mediation in an attempt to settle the dispute without the need for a full arbitration hearing. Handled efficiently, an arbitration can be a cost effective and satisfactory method of resolving disputes that cannot be otherwise settled.

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A: Yes! In a complex case "knowledge is power." The more knowledge the mediator has at the beginning of the mediation the better he or she will be able to discover the parties' objectives in the litigation. This is the most important tool the mediator has in effectuating a settlement. Further, no matter how complex the case appears at first glance, there are usually common patterns and themes that become apparent during the progress of the case. It's much better to discover those common patterns or themes earlier rather than later. It also saves time and expenses for the parties if the mediator is totally up to speed at the beginning of the mediation.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner & Block LLP

A: I ask the parties for mediation briefs which would include a brief statement of the facts and any applicable law. If this is a case involving experts, I would ask the parties to provide any depositions of the experts or if no deposition has been taken, any reports that the expert has rendered. I make it clear that under no circumstances will the reports be shared with the opposing side unless they parties agree to such a disclosure. Having read the depositions or reports, it saves time in the mediation and it gives me a much better understanding of the relative strengths and weaknesses of each party's position. If the mediation briefs are incomplete or raise questions, I will call the attorney for the party to answer any questions or fill in any missing information. I also ask wither there have been any demands or offers. Sometimes, a case can go on for years without either side talking about settlement.


Hon. Gail Andler (Ret.)

JAMS

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A: I schedule pre-mediation conference calls to ask questions and get an idea of party and counsel dynamics. Ideally this takes place after the briefs have been submitted, but I find it helpful even if the briefs have not yet been filed.

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Arbitration is an adjudicatory process. I come with an open mind prepared to receive and weigh evidence, hear arguments, and rule fairly.

Q: Will you (the proposed mediator) handle what some of us refer to as "evaluative mediations" instead of just knocking heads?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Yes, especially where counsel ask for an evaluation. In any mediation there are a variety of approaches which I use, along the spectrum from a facilitated discussion to a more directive, or evaluative approach. I try to determine the most appropriate approach based on the pre-mediation calls, briefs, and initial discussions at mediation, considering what I believe to be the expectations of counsel and the needs of the case. I maintain flexibility, as a mediation which begins as facilitative may need to switch to evaluative to make progress.


Eleanor Barr, Esq.

Barr Mediation

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: Yes, I usually recommend exchanging briefs. The goal of mediation is for both sides to reach agreement on case value, and exchanging briefs that contain meaningful information is an important step to accomplish this goal. It's especially important to exchange briefs when the case is pre-litigation or newly-filed and there has been little discovery. Similarly, exchanging briefs is very useful if the case involves a novel legal issue, complex facts or a complex damage analysis. Here's a good litmus test to determine whether you should share a brief: Ask yourself whether the opposing party is missing information about the case that will help them understand your perspective of case value. If so, then I would strongly recommend that you provide this information before mediation.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner & Block

A: I'm a big fan of getting as much information as possible in advance of the mediation, and this means not only briefs but also supporting evidence. Since most mediations are accomplished through private sessions, I see the mediator's function as understanding and articulating each side's case in the other room. Therefore, I need to know the case as well - or better - than the participants. Once I've read both briefs, I think about what each side might be missing in their understanding of the other side's position. I often make separate pre-mediation calls with each counsel to find out whether there are any unique issues or personalities that I need to understand in advance. Additionally, based upon what I've learned in the briefs, I will inform counsel to be prepared to discuss in greater detail specific issues or evidence during the mediation. In my practice, I ask for briefs seven days in advance, and I strongly urge lawyers to adhere to the due date. Timely briefs will ensure that the mediator is prepared to manage an effective mediation process and outcome.

Q: Will you (the proposed mediator) handle what some of us refer to as "evaluative mediations" instead of just knocking heads?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Yes, I often make evaluations, because I believe the mediator's job is to be sure that the parties understand potential trial outcomes if the case doesn't settle. When it comes to evaluations, however, timing is everything. A mediator needs to be mindful of when and how to evaluate during the mediation. If the case doesn't settle on the day of the mediation, and a party seeks additional evaluation, I will often prepare a confidential, separate written analysis for that party after the mediation. Generally, I will provide a post-mediation evaluation when the case involves complex factual or legal issues or when settlement decisions are made by absent decision-makers. Additionally, if the parties seek a mediator's proposal, I will use my confidential analysis as the basis for my mediator's proposal.

Q: It appears that most ADR professionals prefer (some insist) that the parties not meet in a joint session. I have found that at least one session where the decision makers can meet face-to-face and articulate their positions with "eye" contact is both effective and helpful. Please comment.

Wylie Aitken, Aitken Aitken Cohn

A: I've seen stunning results come from joint sessions where each side takes the time to truly listen to each other. However, people often reject the joint session because they fear that each side will offend the other and this will lead to a failed negotiation. Indeed, if you (or your mediator) view the joint session as an opportunity for the parties to beat each other up, then joint sessions are not simply a waste of time - they are positively detrimental. However, with strategic planning - and a receptive state of mind - I've seen progress occur much more quickly in a joint session than in private sessions, particularly in cases involving strong emotions, complex facts, a continuing relationship, and especially when there is an impasse. A joint session that is managed by a skilled mediator will provide an opportunity for the parties to make connections that can pay off later in the day. When the parties establish rapport in a productive joint session, they are more apt to stay calm and thoughtful even during a competitive negotiation.

Q: How do you reset expectations when parties have unsuccessfully tried to settle a case on their own at an earlier stage in the litigation but the plaintiff now wants to demand an amount higher than it had at an earlier stage? Is the "genie out of the bottle" once the plaintiff utters a demand does that set a more or less permanent ceiling?

Joe Tabacco at Berman Tabacco

A: My advice can be summed up in two words: manage expectations. If you have made a pre-mediation demand or offer and are considering opening at a different number at the mediation, then it's important to let the other side know before the mediation. Moreover, it is beneficial to have a logical explanation for the new demand or offer. For example, you may believe your case has gotten better since your last offer or demand, because of new information you've learned in discovery or because you have won or lost a summary judgment motion. In short, a change in your bargaining position should be based on changed circumstances in the litigation.

Q: Do you find scheduling multi-day mediations in complex cases to be more helpful than the pressure created by a one-day session or not and if so why?

Joe Tabacco at Berman Tabacco

A: A single day mediation is often not the right format for complicated cases. Before determining how to structure a complex case, I make pre-mediation calls with each party to understand the range of issues, and I will design the mediation process to address these issues. For example, if there are complex coverage disputes among multiple insurance carriers, I will hold a separate mediation session focusing on the insurance disputes before settling the liability case. Additionally, if there are multiple defendants who are fighting over allocation issues, I may take a half-day to explore a global settlement through confidential allocation exercises with defense counsel.

It's important that complex cases are structured properly so the parties are not wasting time. In a multi-defendant matter where the plaintiff is negotiating separately with each defendant, I've found it very helpful to create distinct groups of similarly-situated defendants and stagger their arrival times. This way, the defendants are not waiting needlessly to conduct their negotiation with the plaintiff.

Q: Do you ever ask to meet only with the principals (without their lawyers) during mediations? If so, under what circumstances do you want to proceed this way? Are principals-only meetings helpful?

Brad Brian, Munger, Tolles & Olson

A: Principals-only meetings can be extremely effective, with the following caveat: Counsel for each side needs to understand what the principal intends to accomplish in the meeting. For example, the principals may seek to establish rapport and credibility for the ensuing negotiation or for a continuing relationship beyond the lawsuit. These goals will likely encourage productive negotiations later in the day. If, however, the principals seek to negotiate a final settlement number in the meeting, the principal and his or her counsel need to strategize before the meeting as to an appropriate bottom-line that includes litigation risk and litigation costs that have accrued up to the date of the mediation. I've seen principals make deals with each other without having a complete picture of the litigation costs and attorneys' fees, because they failed to get this information from their counsel in advance.


Jeffrey Benz, Esq.

JAMS

Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A: Yes, arbitrations can be viewed by counsel, particularly inexperienced arbitration counsel, as just another form of litigation, importing all of the aspects of litigation the parties were trying to avoid in reaching their arbitration agreement. It takes a managerial arbitrator to evaluate and allow or not allow the activity that would otherwise occur in litigation in the arbitral forum. Absent an arbitration clause addressing this issue, the arbitrator is free to structure the procedure if the parties cannot reach agreement. For example, if the parties agree on limited discovery, then in domestic cases I allow for it, in all of its forms. If the parties do not agree on it, then I have to evaluate whether it should be permitted. The parties and their counsel should be conscious of the culture of arbitration, which is a lot different than that of litigation; that is its utility as a dispute resolution tool.

Q: What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?

Paul Kiesel, Kiesel Law LLP

A: The side that brings the most effective mediation brief is the most helpful to their cause in advance. The advocacy for the mediation starts from that submission, and many simply repeat their claims or defenses from their pleadings with little real analysis or effort to supply the mediator with enough deep information to assist the mediator in resolving the case. In addition, bringing the client is effective at showing commitment, particularly to the other side. I always engage the parties' counsel in a pre-mediation call individually to hear their side of the story and ask any questions. And effective advocates come prepared, with case documents at their fingertips, fundamental factual information about the case and their client, and with an ability to get additional information relatively quickly if needed. They also come armed with a neutrally worded form release that we can use relatively easily to close any deal.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner & Block LLP

A: I prepare for a mediation by first asking for mediation briefs. These should not just be a recitation of their pleadings but they should tell me real information about the case, the settlement history, and what they are willing to open with, so we can get right at the matter right away when we meet in person. In addition, I call both sides separately before the mediation to try to get a better sense of their positions and where they are willing to go at least on opening. Sometimes, in commercial cases, if I am not familiar with the industry, I research the industry the matter is in so I am as up to speed as possible. As part of my preparation I obviously read the briefs, and any documents I have been given, but I also map out the issues in the case and create a list of preliminary questions I have based on what has been submitted.


Dan Ben-Zvi, Esq.

ADR Services, Inc.

Q: What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?

Paul Kiesel, Kiesel Law LLP

A: In addition to coming into mediation flexible and ready to negotiate, attorneys should be prepared to zealously argue their best law and facts. I believe an attorney, who knows their case well, can best decide whether to submit a pre-mediation brief for the Mediator's eyes only or to share it with the opposition. In the latter case, the Mediator may then be provided also with a supplemental brief or letter for the Mediator's eyes only. Also helpful are verdicts in similar cases (from the jurisdiction or courthouse in which the case will be tried) and reported settlements in similar cases. Be ready to share, for the most part, what discovery you intend to pursue if no settlement is reached, including party, witness and expert depositions. An attorney should be prepared to argue from the head and, in cases with a compelling emotional component, from the heart.

Q: Do you ever use a joint session? Ten to fifteen ago we did those with regularity. If not, why not?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I will have a joint session if all first agree it will likely be helpful. I typically first meet with each side's counsel without their client. Then I'll meet with that counsel together with their client. If after meeting each side separately in this manner, I believe a certain type of joint session (be it everyone, or only certain sides, or only attorneys) will help maximize the chance of settlement, then I will recommend it. Only if all agree, will such a joint session then take place. Sometimes joint sessions are where the magic happens. Joint sessions can allow counsel and parties to size up the various players, speak to represented parties and decision makers, and expose unexpected common ground.

Q: What is the biggest mistake you see counsel make in mediation?

Lynne Hermle, Orrick

A: Attorneys should be prepared with specific terms to include in a settlement agreement or at least a memorandum of understanding intended to be enforceable under CCP 664.6. Most Mediators will have a form memorandum which can be edited to add particular terms needed for a settlement for your type of case. Counsel need to be cautious of adding unenforceable terms. Plaintiffs' attorneys often try to add a certain term -- that upon default of an installment payment, judgment shall enter for an amount higher than the balance due -- despite the likelihood of it being invalidated as an unenforceable penalty. Many attorneys find it helpful to come to mediation with a prepared draft of a settlement agreement on their laptop computer.


Richard Chernick, Esq.

JAMS

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Experienced arbitrators have one primary goal - the issuance of a final award that accurately embodies the facts found and the applicable law in reaching the correct conclusion. Arbitrators who are unable to meet these essential needs of the parties will find themselves largely out of work because no one wants a fact-finder who is not dependably skilled in this process. The parties have control in arbitration of, among other aspects, the selection of the neutral; they need to know that the award will be correct, because there is limited basis to challenge the award for legal error.

Q: It appears arbitrators are less inclined than judges to grant dispositive motions (e.g., motion to dismiss or motion for summary judgment). Is that your experience? If so, why?

John Hueston, Hueston Hennigan LLP

A: Dispositive motions are not the same as a summary judgment in court. There is limited discovery in arbitration, which means that when a dispositive motion is made, not all evidence that will be available to the arbitrator at the hearing has yet surfaced in the case. So, a moving party in a dispositive motion must not only demonstrate that there are presently no triable issues of fact, but that it is not likely (or possible) that triable issues will surface in the form of then unknown witness testimony, additional documents, etc. Arbitrators are also particularly cautious in granting such motions because there is little possibility of court review of such decisions on the legal merits. See Schlessinger v. Rosenfeld, Meyer & Susman, 40 Cal. App. 4th 1096 (1995).

Q: As an arbitrator, how often have you been called on to determine arbitrability? Was there ever a time you decided a matter was not subject to mandatory arbitration, and returned it to the trial court?

Jennifer Keller, Keller Anderle LLP

A: Arbitrability issues arise often, particularly in complex cases where arbitration clauses are carefully parsed by resisting parties to see if they can escape arbitration in favor of court processes. Delegation of arbitrability issues to arbitrators is increasingly common since the First Options case and the wide judicial acceptance of the notion that the parties' adoption of JAMS or AAA rules constitutes a clear and unmistakable delegation of arbitrability to the arbitrator. I have ruled more than once that a narrow clause was insufficiently broad to support other than a pure contractual claim (Such as in Rice v. Downs or the Ninth Circuit's Cape Flattery case). I was part of a tripartite panel that this month determined a threshold arbitrability issue in a 90-page decision finding that counterclaims based on Federal, California and Delaware statutes and a foreign trade practice statute were not arbitrable based on a close reading of the parties' arbitration agreement.


Deborah David, Esq.

JAMS

Q: Do you think the unappealability of arbitration awards makes them less reliable? Don't you take advantage of non-review ability to avoid confronting tough issues, and instead tend toward making mushy unprincipled compromises in commercial cases?

John Keker, Keker Van Nest & Peters

A: In my view, lack of the right to appeal does not render less reliable a thoroughly reasoned award. I consider carefully whether the admitted evidence and testimony are sufficient in terms of weight, reliability and credibility to prove the points for which they have been submitted. I then rule on the basis of the facts and the law, carefully explaining the result in a written award that fully informs the parties of the reasons for the outcome. The role of an arbitrator is to confront and decide tough issues--and to document that decision process. The arbitrator's role does not include "splitting the baby" or imposing compromise.

Q: What are the techniques you use when the parties have reached a seeming impasse?

Jennifer Keller, Keller Anderle LLP

A: Depending on the cause, these are some of the techniques I use:

  • To avoid "group-think", I suggest meeting separately with the attorneys or parties.
  • For unrealistic demands/offers, I seek agreement on the reasonable range (brackets) within which to continue negotiations.
  • If fatigue is part of the problem, a short break or change of scenery can work wonders.
  • Increased emphasis on realities and risks can help a party adjust expectations.
  • Where private session discussions indicate a number to which the parties may agree (however reluctantly), I may suggest a mediator's proposal.
  • Impasse can occur when parties have trouble transitioning from the dispute to its resolution. They may require more time to express concerns or interests. Settling parties are giving up their "day in court." They need to feel they have been heard.
  • I once asked a party to imagine a day without the dispute in his life. That broke the impasse.

Q: What are the plusses and minuses of joint session presentations where each side lays out their case at the beginning of a mediation session? Do you typically employ the joint session approach or not and if so why?

Joe Tabacco at Berman Tabacco

A: In some situations, an initial joint session is not the best way forward; in others, it is. Depending on the emotional temperature, for instance, a joint session might not be an ideal start to the day. Generally, the value of joint session presentations depends on how they are done. An initial joint session in which the sides lay out their case by reverting to positions expressed in pleadings or briefs is rarely helpful, and it wastes time. In contrast, a well-prepared presentation that is persuasive rather than positional and signals both a willingness to listen and a sincere commitment to the mediation process can be very useful. In cases that involve an on-going relationship, I often suggest a joint session during the bargaining phase to settle the terms of an agreement. I never go into any joint session without making sure all participants understand its scope and purpose.


Robert Fairbank, Esq.

Fairbank ADR

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A: Yes, I devote substantial time and effort to pre-mediation preparation and communications with all participants in advance of the all-day session. In my experience, the sooner I can begin learning about the unique dynamics of a case, get to know the parties and counsel involved, and obtain relevant knowledge and information that goes beyond what is in the written briefs, the more effective and informed I will be as a mediator. I hold at least one detailed, substantive pre-mediation call with each side separately in advance of the all-day session to discuss factors relevant to settlement and any confidential issues that one side may privately want to raise, so that when we arrive at the mediation, rather than starting cold, I already have a good sense of the participants and important elements of the dispute. I have found this commitment to pre-mediation efforts to be extremely effective and well-received.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner & Block LLP

A: Having spent 36 years as a litigator, I often felt that very frustration coming to a mediation and not sensing that the mediator had a strong enough grasp of the merits of the case to be effective. To have credibility and be able to effectively persuade both sides, it is crucial that I come to the mediation as prepared as I can by mastering the merits of the case to the extent possible and thoroughly understanding all the relevant facts and arguments. To that end, beyond substantial pre-mediation calls I hold separately with each side to discuss factors relevant to settlement and other issues that go beyond what is in the briefs, I ask each side to consider and be prepared to orally address a detailed set of confidential written questions submitted shortly before the mediation regarding what I perceive to be their relative strengths, weaknesses and risks.

Q: How much time, if any, do they devote to post day-of-mediation work if the case doesn't settle?

Brian Kabateck, Kabateck Brown Kellner LLP

A: In my experience, many (if not most) of the particularly large and complex disputes do not settle in the initial session, although good progress and a useful foundation for settlement at a later time can be made. I remember feeling frustrated as a litigator when, frequently, the mediator essentially disappeared after the all-day session and did not reach out to the parties to follow up. By contrast, I am adamantly committed to following up with the parties and staying actively engaged through phone calls, emails and/or additional mediation sessions, for as long as it takes to resolve the matter. For example, even if active mediation efforts are "on hold" while litigation plays out, I will regularly check in with both sides every few weeks for a simple status update, so I am prepared to act quickly when the time is right. I have received extremely positive feedback regarding my follow-up approach.


Theodore J. "Ted" Fogliani, Esq.

JAMS

Q: In which types of cases is mediation least effective?

John Hueston, Hueston Hennigan LLP

A: The process of resolving disputes outside of a courtroom frequently referred to as "mediation" is not for everyone! As a litigator and mediator of family law disputes for over forty years, I believe the single most important factor that prevents an effective mediation process to occur is the mental and emotional health of one or more of the participants.

Generally, when two individuals meet, spend significant time together, share their inner most thoughts and feelings and eventually fall in love, it is difficult to know the current status and history of their partner's physical, let alone mental health.

Fortunately, a person's physical appearance, daily habits and activities will give a future spouse or life partner indicators of the physical health of that person. Unfortunately, that same person's mental and emotional state may take months, sometimes years, to fully be disclosed or understood (if ever).

And so it is that an effective mediation with a highly skilled and experienced mediator will likely never be successful where there are serious and long term psychosis or social disorders which were in place during the relationship and which will continue long after the parties separate.

Q: How important is a trial date to a successful mediation?

Paul Kiesel, Kiesel Law LLP

A: The words "trial date" are somewhat illusory and misleading in today's current Family Court system. With the Court's crowded calendars and the increase in filings, the actual setting of a case for trail can be delayed. As a litigator and mediator for the past forty years, I believe in order to truly get parties to be realistic about settlement alternatives, the process of preparing for trial is critical.

In most, if not all of my 3,500 plus cases, the process of trial preparation begins at the first client meeting. It begins by sitting and listening to your client tell his or her life story and what has occurred that brought them to you. It involves becoming immersed (not enmeshed) in the family dynamics and the role each member of the family has played to bring about a separation between the parents and, in all likelihood, the disruption of the parent/child relationship(s).

The Court system is very attentive to the progress of each case on its docket(s). The purpose of preparing for trial, conducting discovery, preparing forensic reports (if needed) etc. is to educate both the parties and their attorneys on the characteristics and value of community and separate property claims, spousal and child support issues, parenting plans and a multitude of related issues.

Once both parties are on the same level playing field, the process of settlement and/or mediation can begin. Most experienced and enlightened lawyers will (or should) study, learn about and use mediation techniques in negotiating fair resolutions of their cases.

It is true that the setting of a Mandatory Settlement Conference ("MSC") or a Trial date will exert pressure on the parties and counsel to accelerate their efforts to complete discovery, assess the merits and flaws in their case and "meet and confer". The actual trial of a contested family law matter is generally the last and least effective alternative to a negotiated settlement.


Hon. Robert Freedman (Ret.)

JAMS

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A: The process best begins when the mediation has been scheduled and, sometimes before an initial mediation date is set, when timing or "ripeness" for resolution is significant. An initial joint conference call before briefing is preferable and may help focus the briefing. Counsel may need to include subject matter in a mediation brief to assure a client that their interests are being articulated even on topics that are not in dispute or critical to the outcome. This should be seen as potentially fostering resolution and accommodated unless clearly counterproductive. The issue of mediation briefs being submitted confidentially, only to the mediator, and not served on other parties, or exchanging briefs should be addressed. While mediation confidentiality must embrace briefing, very often exchanged briefs, with a separate addendum for the mediator only, will expedite preparation and help the parties and the mediator effectively and economically prepare for the mediation.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner & Block LLP

A: No one wants to (or should) hear the mediator begin the session by asking, "What is this case about?" Pre-mediation session conferences calls (jointly and separately) and focused briefing are critical. Although the mediator is not the decision maker, the line between the "facilitative" and "evaluative" roles is often elusive. Thus, some legal or other research may be useful to enhance the prospects for resolution. Assuring that decision makers are present, or at least accessible, when personal presence is not feasible or necessary is significant. However, there are cases in which having all decision makers present can be counter-productive. A corporate or public entity party may need a board vote to confirm a settlement, but counsel may properly conclude that some time or "space" is conducive to obtaining formal approval of a conditional settlement reached at mediation. Counsel for the parties are in the best position to inform the mediator when absence is more useful than an incendiary presence.

Q: Do they ever use a joint session? Ten to fifteen years ago we did those with regularity. If not, why not?

Brian Kabateck, Kabateck Brown Kellner LLP

A: Ever? - Short answer - yes! Longer answer: No mediation related subject could be more case specific or less scientific than the issue of the utility of the joint session. This also invokes the issues of: (1) who (counsel only, counsel and all or some parties, claims representatives, experts, "support" persons) should participate; (2) the format of the joint session, e.g. the equivalent of an opening statement at trial or a focused dialog on one of more specific issues; (3) timing of the joint session(s): (a) early as an "ice breaker"; (b) at any time to clarify a specific issue; (c) or only when all hope appears lost. Insight from counsel as to the sophistication, self-control or volatility of potential participants should be respected. The experiences of counsel with each other in other cases may be influential ("....I already know what he/she is going to say..."), but also mistaken. An opportunity lost - or disaster averted? Mediation is a voluntary process including the willingness to participate in a joint session, but the joint session can be, sometimes surprisingly, a road to resolution.


Bruce Friedman, Esq.

JAMS

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: I believe in fairly calling balls and strikes and in providing a reasoned decision that conforms to the law. Having come to arbitration as an advocate and not a judge, I appreciate the criticism of arbitration and the perception, if not reality, that arbitrator's split the baby. This is frustrating and from a lawyer's point of view, I do not know how one would counsel her client about settlement vs. Arbitration without the predictability one derives from applying the law to the facts of the case. An arbitrator should have the strength of his convictions and render a decision that one would expect to receive in Court.

I grant dispositive motions, but do so sparingly. The reason is that not holding an arbitration hearing and considering all of the "evidence" is a ground for overturning an Award. I do not believe that that the rule is fully understood and appreciated by counsel so I understand the frustration in not having a dispositive motion heard or in its denial. It is not because arbitrator's want to make more money by holding the hearing, it actually stems from a desire to protect the record of the arbitration and render a decision that is not subject to attack in court.

Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A: The answer is twofold. First, the arbitration cluase has to be drafted in such a manner as to not permit discovery under the CCP or FRCP. Second, the arbitrator has to manage the process in a way that limits discovery and sets the arbitration hearing in a reasonable time following the initial status conference. I do not like written discovery in arbitrations and either dispense with it or have it limited to a document request. The rules also limit depositions to one per side and I try to follow the rules within reason depending on the size and complexity of the case. Frankly, I think motions in limine are a waste of time and effort. The rules of evidence generally do not apply in arbitrations and the parties are making the motions in limine to the decision maker who will consider the "evidence" that the party is trying to exclude. It is difficult to unring that bell.


Stacie Feldman Hausner, Esq.

ADR Services, Inc.

Q: What is the biggest mistake you see counsel make in mediation?

Lynne Hermle, Orrick

A: I think that counsel should not reveal their true bottom line early in the mediation. Although a bottom line can help mediators ascertain potential zones for settlement, I think the revelation compromises counsels' ability to optimize their settlement outcomes. First, mediators do not need a bottom line number to settle a case. They can learn about the settlement zone by reading the pattern of concessions. Second, practically speaking, a true bottom line does not exist. Parties typically are willing to take less than a stated bottom line to get a case settled, especially after a protracted negotiation dance of concessions. Third, when counsel reveals a bottom line, that number often naturally becomes the settlement point, even when mediators attempt to obtain better settlement figures. I believe that counsel can optimize settlement outcomes by not revealing the bottom line until arriving near that number. Counsel should let the negotiations naturally occur so that the mediator is not targeting a number for settlement. If counsel wants to give the mediator an idea of their settlement range, counsel should reveal a range that is higher than a true bottom line, so that the mediator is working at a settlement that is more advantageous for counsel. Therefore, revealing a true bottom line early in a mediation, can result in a less than optimal settlement outcome.

Q: How important is a trial date to a successful mediation?

Paul Kiesel, Kiesel Law LLP

A: The procedural posture of the case can be exceptionally important to the success of a mediation. Seventy five percent of cases settle within thirty days of trial. In factually complicated cases, ongoing damages cases and/or cases dependent upon expert testimony, settlement usually does not occur until close to the trial date and after the discovery and expert cut-off dates. This is because attorneys need all of the information before being able to accurately assess the value of their case and risk at trial. In theses cases, mediations are much more successful closer to the trial date. However, in less factually complicated cases and set damages cases, a trial date becomes less important to the success of the mediation. In these case, often times, it can make sense for the parties to settle early and use the costs and fees that they would have spent to fully litigate the case, to bridge any potential impasse that would exist at a later mediation. Additionally, in cases where the parties to the dispute have an ongoing relationship, or a potential for an ongoing relationship, an early mediation can be very beneficial because an early resolution of a dispute can benefit the parties by preserving that relationship.

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I recommend exchanging briefs with opposing counsel, and submitting in a separate memorandum to only the mediator, any sensitive information or legal arguments that you do not want opposing counsel to learn. Mediators are able to extract concessions and move the parties toward settlement at a mediation by sharing the other side's perspectives, positions and interests. However, it is more difficult for the opposition to change perspective when learning of a legal argument or information for the first time during the mediation. By sharing the brief, you are enhancing your presence at the mediation, not doing a favor to the opposition. You give the opponent time to understand the strength of your case, so that they can do the necessary research and risk analysis that may allow them to evaluate the case closer to your settlement figures. Furthermore, often times, the decision makers with ultimate authority are not present in the mediation (such as with companies requiring board approval or with insurance carriers), and accordingly, cannot learn of your arguments as the mediation unfolds. A mediation brief is a succinct and effective tool to allow the ultimate decision makers to learn of the strength of your case, and hopefully, give authority at a settlement figure more beneficial to your client. Therefore, I believe the best advocacy in mediation is to write a great brief and share it with counsel.


Hon. John Herlihy (Ret.)

JAMS

Q. What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?

Paul Kiesel, Kiesel Law LLP

A. The most effective tool for an attorney to bring to a mediation is a different skill set than the attorney would bring to a hearing or trial. The attorney is still the advocate for the client. However, mediation is an ADR process with settlement as the goal. The attorney should take a critical look at the strength and weakness of the client's case, as well as the other parties' cases. In addition, the attorney should understand the client's best alternative to no agreement. What happens if the case does not settle? What is truly in the best interest of the client? Are there reasons why the client should settle the case even though the facts and/or the law seem favorable to the client? Is the client prepared to invest the time, money and emotions, if the case does not settle? Wear your settlement hat, not your trial suit!

Q.Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A.I do agree that this has become a problem. JAMS Rules allow for very limited discovery in arbitrations. Most attorneys agree to expand discovery because it is believed to be necessary given the complexity of the arbitration. The best way to avoid "arbigation," is to limit discovery. An attorney should insist that the arbitration rules will be strictly applied and the discovery process will not become extensive and expensive. However, arbitration is the ADR process chosen by the parties. They can tailor procedures to fit their needs. In doing so, the risk is that the process will not be streamlined but rather protracted. Prehearing motions in limine are generally unnecessary. If you want to highlight an evidentiary issue, write it in a prehearing brief. This will give the arbitrator an opportunity to prepare for this important issue.

Q. When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A. I like to read the briefs first. Then I do whatever legal research I feel I need to do in advance of pre-mediation calls. I always talk with counsel separately and without the clients on the call. This is the time for the attorneys to be as open as they will ever be. This gives me the opportunity to explore issues that often are not put in a mediation brief, for example: the personal history of the parties; the issues that have arisen between counsel; the real impediments to resolution. Oftentimes, the law and the facts are not the problem. Frequently, the personal issues of the parties are the roadblock to settlement. Understanding those issues before the mediation session is extremely helpful. In fact, trying to learn these issues during a mediation can be very difficult. I can be much more effective as a mediator if I know the backstory.


Hon. David Hunter (Ret.)

JAMS

Q: What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?

Paul Kiesel, Kiesel Law LLP

A: Willingness to accept the reality of the strength and weakness of the case and to be candid with the client.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner& Block LLP

A: I need to have a complete understanding of the facts ( as viewed by each side), each side's legal position and the client's emotional aspects that may influence the negotiations. I thoroughly review, highlight, tab and make notes of mediation talking points in each mediation brief. I do legal research on disputed legal points.

Q: Why do so many mediations now seem premature and the parties already start talking before the mediation begins about a "second session" and what can we do to curb that?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I don't give up and I don't feed into that approach. I ask the parties and counsel to be patient. I explain that many times the cases do not settle until late in the mediation. I reiterate that approach if the parties start talking about quitting early or needing a second session. That frequently happens early in the mediation; those cases usually stay and most of them settle late in the day.


Hon. Ken Kawaichi (Ret.)

JAMS

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: If the legitimate purpose of an arbitration was to "split the baby" in half, Neutrals would be unnecessary. One could just ask each side to state an opening position, add them and divide by two. Arbitrations should be an opportunity for the parties to have an unbiased neutral find facts, apply the law and determine the appropriate award without regard to any middle point.

Q: It appears arbitrators are less inclined than judges to grant dispositive motions (e.g., motion to dismiss or motion for summary judgment). Is that your experience? If so, why?

John Hueston, Hueston Hennigan LLP

A: Both as a judge and as an arbitrator, I have granted dispositive motions in the nature of Summary Judgements or Summary Adjudications. While the basic tendency may be to preserve a "day in court" for the litigants, in either court or ADR, if there is no material issue of fact (and not likely to be one) and the appropriate law is applied, a dispositive motion must be granted. To be clear, dispositive motions are not frequently granted. Buts where it is the case that cannot be proved, then fairness to other litigants mandates the granting of such motions.

Q: How can you decide arbitrations without being influenced by the identity of the parties and their lawyers, i.e., if one is a repeating source of business, or an opinion leader among lawyers?

John Keker, Keker Van Nest & Peters

A: The identity of the parties or their counsel never should influence arbitration decisions or mediations. If the neutral has opinions or feelings about the parties or counsel, the neutral should recuse herself/himself if appropriate or if the opinions or feelings are felt not to influence the outcome, at least disclose the facts to all sides.


Joan Kessler, Esq.

JAMS

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: A well-drafted, persuasive mediation brief can be a very helpful tool if exchanged with opposing counsel. I know that some clients will not permit that, however. Sometimes, I suggest removing the settlement section and other "For Mediator's Eyes Only" information and exchanging a redacted brief. This provides a clear picture of the client's position and sometimes makes the premeditation chats between counsel and the mediator more productive.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?

Rick Richmond, Jenner& Block LLP

A: I take the opportunity to be the mediator very seriously. I am a mediator because I really like to help people settle their cases. I used to work internally when I was practicing to help resolve the matters, and I guess I am aggressive in getting cases settled. I read everything the attorneys send me and I call the counsel usually after I receive the briefs, but sometimes even before I receive the briefs. I ask each side what they need from the other side and see if I can get that information or document brought to the mediation to increase the likelihood of settlement. I also tell counsel that I want the key decision makers at the session and ask that they bring the central documents, exhibits, relevant case law and charts or statistics to help settle the case.

Q: Will you (the proposed mediator) handle what some of us refer to as "evaluative mediations" instead of just knocking heads?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

Q: How important is reputation, as a tool for the mediator (on both sides plaintiff or defense) to help with a successful resolution?

Paul Kiesel, Kiesel Law LLP

A: I discuss my views of the case confidentially with counsel and unless they don't want one to share my views, I usually give my thoughts at least to counsel and to their clients. Many times counsel asks me to share these insights with the clients to help them become more realistic. In cases where there will be a jury, many times counsel want my jury consultant/researcher hat on to give my insights from my years as a jury consultant/researcher. I am known to be honest and direct, yet compassionate and sensitive to people's feelings and insightful on the intercultural communication issues in the mediation. Many times I give a downside risk to each side by emphasizing the various strengths of counsel and/or the parties when relevant to lead to resolution.

Q: Do they ever use a joint session? Ten to fifteen years ago we did those with regularity. If not, why not?

Brian Kabatek, Kabateck Brown Kellner LLP

A: While I usually do not use a joint session at first in a highly emotional/hostile mediation, I many times at least bring counsel together at some point to make sure that they are really communicating. Once in awhile the plaintiff really needs an opportunity to have their "day in court" so I will have them, with counsel's permission, make their case. However, in employment or highly charged estate/trust/probate disputes or highly hostile business/real estate/entertainment, etc. disputes sometimes having the feuding parties fight it out is not the best strategy, especially until after I get the lay of the land. I have had cases where having the parties and counsel work it through with me together is helpful, but usually not in employment cases.


Jeff Kichaven, Esq.

Jeff Kichaven Commercial Mediation

Q: How detailed are your disclosures about your prior relationship with parties or counsel? Why have you chosen the level of disclosure you selected? Are your disclosures different depending on whether this is a mediation or arbitration, and why?

Jennifer Keller, Keller Anderle LLP

A: I disclose everything. I want there to be zero chance that, after a mediation, someone will learn something which will concern them. Since I grew up in L.A. and went to college in the Bay Area, there can be a lot to disclose: Someone was my brother's high school classmate; someone's kid was on my kid's AYSO team 25 years ago (and a younger lawyer himself was on my kid's team!); a younger lawyer's grandmother played Mah Jongg with my mom. Most people appreciate the candor and shrug it off. Once, I disclosed that my second cousin Matt was an M&A partner in a law firm's Chicago office. I lost the case. That's ok. Sometimes, I get a case because another mediator made a disclosure. Nobody ever tells you that. But I know it happens. There's plenty of work to go around. It's a just world; I get my share.

Q. Many litigators report that at the beginning of their careers, many mediators start their mediations with joint sessions at which the parties' lawyers give short opening statements or arguments. As they do more mediations, however, mediators tend to dispense with such opening statements and proceed directly to separate sessions with the parties. Is that accurate and, if so, why? Do you think opening statements are valuable in some cases and, if so, under what circumstances?

Brad Brian, Munger, Tolles & Olson

A: While every case is unique, I presumptively have joint sessions. I know other mediators don't. Sometimes I think I have more joint sessions than all the other mediators combined. Turns out lawyers like them. That's because we go in prepared to generate progress. We don't have old-fashioned "plenary" joint sessions where everyone hurls firebombs. We have joint sessions with narrow, focused agendas. After I read the mediation briefs, I call the lawyers to focus on the central issues and narrow our agenda to just those issues. In the joint session, we stick to the agenda. I ask lots of questions. Well-prepared lawyers welcome them. This sets the stage for caucuses in which we discuss and evaluate the joint session discussion of the agenda items. It helps clients understand there are two sides to the story. That's how we create flexibility, generate progress and get more cases settled.

Q: How close do the parties need to be for a "mediator's proposal" to succeed in settling a case?

Brad Brian, Munger, Tolles & Olson

A: The Mediator's Proposal is like cross-examination. The best cross-examiners never ask a question unless they know the answer. The best mediators never make a Mediator's Proposal unless they know it will be accepted.

Q: How do mediators do this?

A: First, there's timing. When most of the gap has been closed and you sense the aroma of settlement, but the bargaining stalls and nobody wants to blink, that's the best time for a Mediator's Proposal. Then, there's planning. I like to get counsel's permission to make a Mediator's Proposal. I also discuss possible numbers with counsel and don't like to make a Mediator's Proposal unless all counsel agree to recommend the number to their clients. With those recommendations, we're likely to succeed. If a Mediator's Proposal is rejected, it can kill the negotiation. That's why it's so important to make Mediator's Proposals skillfully, at the right time and in the right way.


Hon. James Kleinberg (Ret.)

JAMS

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: I never approach an arbitration to "split the baby." I believe that is improper, just as when I was on the bench.

Q: Since, in most arbitrations, the arbitral panel is not required to strictly follow the rules of evidence, how does a panel decide just how rigorous (or lax) to be with the receipt of evidence in a case?

Roman Silberfeld, Robins Kaplan LLP

A: Every case is different, of course, and the arbitrator's experience as a trial lawyer and/or judge gives one a sense of what is relevant and useful. But arbitrators err on the side of admission rather than exclusion.

Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A: The Arbitrator has to take control through case management conferences, setting forth his/her rules and practices, asking tough questions of counsel, putting limits on presentation times. The complex civil case program in the California Superior Court has ideas in this regard.


Denise Madigan, Esq.

Madigan ADR

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?

David Willingham, Boies Schiller Flexner LLP

A: In complex cases I prefer to speak to counsel early on — together or separately (depending on the circumstances) — to get a preliminary sense of the case and to talk about how best to structure the mediation process. I may ask about the nature and history of the dispute, the key issues to be discussed, the underlying interests involved, key players (and personalities), information that should be developed and/or exchanged prior to the first session, methods for developing or exchanging information, the appropriate party representatives with decision-making authority, special confidentiality concerns (beyond discovery and evidence concerns) and any external influences or constraints outside the courtroom (e.g., economic, regulatory, reputational or political). Sometimes clients are included in these early conversations.

In general, I use these preliminary conversations to identify potential land-mines, formulate process recommendations and, if necessary, mediate disagreements about how to proceed.

Q: Do they ever use a joint session? Ten to fifteen years ago we did those with regularity. If not, why not?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I tailor my approach to the circumstances. In today's litigated cases, I find that joint sessions usually work best if they are designed to serve a purpose. They need not involve formal opening statements.Initial joint sessions can be as simple as a meet-or-greet. Or they can accomplish specific objectives early on, such as providing an opportunity to clarify a miscommunication or misconception, or to allow one side to evaluate the credibility and appearance of a witness or party on the other side. I often find myself convening "mini" joint sessions in the course of a mediation, usually to address a critical roadblock or to open up a new line of communication, e.g., having lawyers meet to discuss a pending motion or court ruling or having principals meet to express certain (constructive) sentiments or to close the deal themselves.

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I normally defer to counsel's wishes. But I prefer that parties exchange as much information as they can prior to the mediation; it can save everyone a substantial amount of time. When briefs are shared, I encourage counsel to send me a confidential supplement, if they like, outlining any private information, requests or insights they think might be helpful for me to know. I would not recommend an exchange of briefs if counsel are unwilling or unable (perhaps due to client instructions) to draft a brief that is not incendiary. If the case is complex, I might also make specific recommendations about what the parties should include in their briefs or share with the other side. If the parties cannot agree on what to share in advance of the mediation session, I will work with them to resolve their differences.


Hon. Michael D. Marcus (Ret.)

ADR Services, Inc.

Q: Since, in most arbitrations, the arbitral panel is not required to strictly follow the rules of evidence, how does a panel decide just how rigorous (or lax) to be with the receipt of evidence in a case?

Roman Silberfeld, Robins Kaplan LLP

A: There is widespread uncertainty about the application of the rules of evidence at arbitration. The California Arbitration Act adds to that uncertainty. Code of Civil Procedure section 1282.2, subd. (d) provides, in part, that "The ... rules of evidence and rules of judicial procedure need not be observed." Therefore, in the absence of any law, the applicable arbitration agreement, if there is one, governs the manner in which the arbitration is to be conducted. If there is neither an agreement nor a specified procedure, the parties should decide how they want the arbitration to be administered. If they cannot agree, the arbitrator should advise the parties before the arbitration begins that the hearing, including the application of the rules of evidence, can be formal or informal; it is up to the individual parties to decide whether they wish to object to evidence and, if there are objections, the arbitrator will rule on all objections as they are made.

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: There are no compelling reasons for opposing counsel not to exchange mediation briefs. Because most attorneys don't share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don't know their opponents' factual and legal theories. Thus, mediators must spend valuable time in the beginning of the process educating the parties about the facts and laws at issue. The only sound reason for not exchanging a mediation brief is if it contains either a fact (perhaps a smoking gun) or a legal tactic (discovery or motion) that should be held in abeyance. But that's easily resolved; if you don't want the opponent to know about facts, legal theories or arguments that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum.

Q: When do they use a mediator's proposal?

Brian Kabateck, Kabateck Brown Kellner LLP

A: There are no rules when a mediator's proposal should be made, just as there are no formal rules for how any other part of a mediation should be conducted, other than it must be held under a cloak of confidentiality. Experience, however, shows that a proposal, whether it is either a mediator's educated guess as to the settlement terms that will be acceptable or, alternatively, is the mediator's evaluation of what the case is "worth," it is most effective when the parties have reached a stalemate and all other settlement techniques, such as market place bargaining and brackets, have been considered or exhausted. By that time, the proposal has a substantial chance of being accepted, because the mediator, after much discussion and negotiation, should be seen by all concerned as informed, knowledgeable, fair and credible.


Louis Marlin, Esq.

JAMS

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I strongly recommend exchanging briefs at least a week prior to the scheduled mediation whenever possible. In doing so, I urge the parties to exchange a "redacted" brief that does not contain either demands of offers, as providing those can generate anger that derails a mediation before it begins. However, the exchange of briefs setting forth both the factual and legal arguments of each side give the parties an opportunity to be prepared to respond to the other side at mediation. In addition, exchanging briefs often highlights areas of agreement, which can facilitate the mediation process, and helps focus the process on the non-monetary areas that need to be overcome to reach a mutually satisfactory result.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare.

Rick Richmond, Jenner& Block LLP

A: Prior to every mediation I conduct, I have a private telephone conference with each side. In an ideal situation, I will have received the brief from each side prior to the call and will have had an opportunity to thoroughly review it to determine if any "red flags" pop up that should be addressed prior to the actual mediation session. By example, if the briefs disclose a significant liability or damage impacting dispute, I may ask the parties to clear up this discrepancy during our phone call. However, in doing so, I am very careful not to disclose information provided by the other side unless I have received permission to do so. In addition, I often ask the parties to exchange a redacted version of the brief I have received with the other side. While I believe it can be counter-productive to exchange demands and offers prior to mediation, the exchange of arguments relating to liability and damages can aid the mediation process.

Q: When do they use a mediator's proposal?

Brian Kabateck, Kabateck Brown Kellner LLP

A: I think it is entirely counter-productive to present a mediator's proposal that the mediator knows will be rejected in order to use it as a negotiating tool to push one side or the other in a particular direction. Rather, it is a way of "closing the gap," and should be used carefully, but not necessarily sparingly. While I often use a mediator's proposal, the timing of its use is critical. I do my best to wait until two events occur: first, the parties have engaged in comprehensive discussions with me and I believe they have moved their initial positions to a point that is both reasonable and relatively close to the other side. Second, having done my best to prohibit the parties from making "last and final" demands or offers, I attempt to craft a mediator's proposal that I believe will be accepted by both sides.


Richard Posell, Esq.

JAMS

Q: Do you come to the arbitration prepared to split the baby or fairly call balls and strikes?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: I decide on the basis of the facts and the law.

Q: Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?

John Hueston, Hueston Hennigan LLP

A: Yes. The arbitrator needs to be strict (but fair) on discovery.

Q: What is the biggest mistake you see counsel make in mediation?

Lynne Hermle, Orrick

A: Trying to win.


Jan Frankel Schau, Esq.

ADR Services, Inc.

Q: What is the biggest mistake you see counsel make in mediation?

Lynne Hermle, Orrick

A: There are at least two categories of mistakes that are very common. First, counsel sometimes have not prepared the other side properly for the range of settlement that is possible. For the Plaintiff, this may be due to a complete lack of communication with Counsel for Defendant, or it may arise out of an early demand which has now doubled, but with no further communication to indicate that. For the Defense, this may be due to either an absence of or incomplete information upon which to evaluate the damages or due to an inability to pay the value of the case for financial reasons. In any of those cases, early and frequent communication with the adversary will save a lot of headache and frustration at the mediation itself. The second category of mistake I see is that the lawyers may have over-sold their case to their own clients. For Plaintiffs, this means raising expectations and then necessitating a disappointed client at the end of a day. For Defendants, this means a difficult conversation about the odds of prevailing and the costs of standing by their principles once the negotiations are within a range that is reasonable, albeit not reflective of a likelihood of a defense verdict on all counts. There is always a different "value" to settlement than the jury value.

Q: Do you find there is a benchmark that most people begin their negotiations at either on the low-end or the high-end, for example the opening offer is usually X percent below with their prepared to pay and the demand is similarly Y percent of what the plaintiff is prepared to take?

Paul Kiesel, Kiesel Law LLP

A: When I teach distributive bargaining to my students at Pepperdine, I teach that most cases end up at the mid-point of the first reasonable offer and the first reasonable demand. Also, the average negotiation will be between 5-7 steps away from those numbers. Unfortunately, that may bear no relationship to the numbers at which either side "opens". That is why many experienced mediators spend so much time with the parties before the opening numbers are articulated. Also, the personalities of both counsel and their clients may dictate whether the negotiation will be very cooperative or very competitive. Negotiation is a function of both style and strategy. While there is some predictability to distributive bargaining, you can't predict the particular outcome before you observe the process in the particular case you are mediating. Ask me the question again at about 2:30 in the afternoon.

Q: How do you decide if and when a mediator's proposal is appropriate and does any psychological factors play a part in this decision?

William M. Shernoff, Shernoff, Bidart Echeverria LLP

A: The first issue in the question is whether the mediator decides this or is asked to do a proposal by the attorneys. In theory, the mediator should only suggest this if an impasse is imminent. However, in many cases, it's obvious that the attorneys need some way to save face--either with their opposing counsel or their own clients, and so they express a sense of futility that conveys that the parties will never agree to the other side's numbers, and that the only way that the case will settle is if the mediator proposes a number that both sides can live with. The psychology is multi-faceted. First, there is the idea that the attorneys would not recommend the settlement at these outrageous numbers (high or low) to their clients. This gives them "plausible deniability" that the compromise is worth considering--but would not have been their recommendation. The other facet is that the mediator begins to negotiate with each side so that she has a fair idea that at least one side will find the number acceptable in advance (usually the one who is further off). Finally, there is the psychology of the gamble. If the mediator chooses a number, it is generally because she thinks the other side will take it, even though they have expressly resisted getting to that number during the course of negotiations. By that time in the negotiation, both sides are generally frustrated by the other sides unwillingness to stretch in order to make a deal. The mediator can cut through the games and bravado and get to a place that is sensible and usually acceptable without either side having to go through the laborious steps necessary to get there on their own.


Caroline Vincent, Esq.

ADR Services, Inc.

Q: Will you (the proposed mediator) handle what some of us refer to as "evaluative mediations" instead of just knocking heads?

Patricia Glaser, Glaser Weil Fink Howard Avchen & Shapiro LLP

A: Absolutely. I help the parties evaluate their respective cases for settlement, assessing strengths and weaknesses, costs and time to trial or arbitration, risk of outcomes, as well as emotional or personal reasons to resolve the matter versus continued litigation. I encourage them to convey their valuations to the other side, in a joint session of lawyers at the beginning of the mediation, and/or in key bullet points accompanying their respective offers and demands. This exchange of valuation points often fosters a productive and forward going negotiation. It also helps me as the neutral to hone in on the key evaluative drivers, while constantly working to move the parties toward resolution. Putting evaluation discussions front and center is key to helping parties make realistic and informed decisions between the developing deal on the table and the costs and risks of continued litigation. Call me old fashioned, but facts matter.

Q: How close do the parties need to be for a "mediator's proposal" to succeed in settling a case?

Brad Brian, Munger, Tolles & Olson

A: The closer the better, but "close" is a relative word. More important is for parties to counter back and forth until they cease moving further. By then I will have informally floated numbers or ranges for their consideration in private caucuses, to get them closer to each other. Considering specific numbers or ranges as homework gives parties a chance to try them on for size, and focuses them on movement. I typically give the formal mediator's proposal as a last resort, even if parties are so far apart that it is a "stab in the dark". I ask permission to give my proposal, enhancing buy-in, along with determining how much time is needed to make a decision. Even if the parties are far apart, a mediator's proposal may be accepted, and if not there is an anchoring number that will serve as a reference point for further negotiations.

Q: If you are the neutral for a large, institutional client that has used your services repeatedly in the past, how do you address this with the parties.

Jennifer Keller, Keller Anderle LLP

A: I disclose this to counsel before a mediation session, sometimes verbally and always in an email in my pre-mediation letter. In arbitrations, prior service is always disclosed in writing. At the session in both mediations and arbitrations, I repeat this disclosure at the beginning of the hearing to insure that the parties are informed. I explain that I am a professional neutral, that every case is different and sometimes the outcome may seem to favor the client, and sometimes not. Further, as a professional neutral I do not favor one side or another, my reputation depends upon my neutrality, and repeat business from counsel and large companies is how neutrals make a living. I answer any questions with non-confidential details about my prior service. Candor and a reminder of adherence to neutrality in service of each matter create trust and confidence in the process and the neutral.


Hon. James Ware (Ret.)

JAMS

Q:In which types of cases is mediation least effective?

John Hueston, Hueston Hennigan LLP

A: There is no case that is categorically more or less suited for mediation. There are circumstances, however, that affect the readiness of parties to resolve a case, most notably a feeling by one party that better information will lead to more informed resolution. A skillful mediator must extract and address each impediment to resolution.

Q: Do you ever ask to meet only with the principals (without their lawyers) during mediations? If so, under what circumstances do you want to proceed this way? Are principals-only meetings helpful?

Brad Brian, Munger, Tolles & Olson

A: Lawyers are such an important part of the process that leaving them out of any part of the conversation deprives the mediator of their valuable contributions. I welcome their involvement and enlist them, not to abandon their respective clients, but to assist clients to see the benefits of a mediated solution.

Q: What are the techniques you use when the parties have reached a seeming impasse?

Jennifer Keller, Keller Anderle LLP

A: An impasse is just one of the many kinds of barriers that arises in mediation. When the parties are presented with an impasse, I invite the parties to agree on why there is an impasse. If successful in reaching agreement on that, I invite them to agree on what needs to be done to overcome the impasse. From there I invite them to agree on ... and so it goes.

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