Mediation Advocacy Tips

Copyright 2001 by Paul R. Fisher
Judith Stalk, Editor

How do you deal with emotional issues in multi-party disputes without too much attorney waiting time? Parties' emotional issues arising from the dispute must be addressed in the mediation. In muti-plaintiff disputes in order to save time of numerous defense counsel, consider a stipulation among all counsel to have the mediator hear each plaintiff in caucus, including emotional issues, with a time limit for each first caucus. This process takes time, but keeps a lid on the total time of each counsel, and leads to resolution of complex multi-party disputes.

What do you do when a defendant refuses to contribute unless it knows what other parties are contributing? Keep settlement contributions confidential- from everyone. In multi-party cases, and where there are numerous insurance carriers participating, or where emotions are running high, it may be very prudent to permanently keep confidential from all defendants and plaintiffs contributions made by each of the defendants. Confidentiality in this manner may yield higher contributions and stop disputes among defendants that could prevent a case from settling. Settlement contributions can be kept confidential by disbursing them through an escrow.

Is it possible to wage war and peace at the same time? On large cases parties may wish to have present at the mediation a peace team consisting of settlement counsel and a war team consisting of trial counsel. Trial counsel needs to be present so the parties will know and appreciate strategies, weakness of their case and the strengths of the oppositions case, then preferably observe and keep the negotiations going with the peace team. The client benefits from the presence of the war team by understanding risks and costs of going to trial, while the peace team assists in bringing resolution.

Are you having difficulty getting a party or insurance carrier representative to the mediation? Lawrence W. Crispo, Judge of the Los Angeles Superior Court, suggests asking your judge for help. Pursuant to California Rule of Court 222, Mandatory Settlement Conferences, (c) "(Persons attending) trial counsel, parties, and persons with full authority to settle the case shall personally attend the conference, unless excused by the court for good cause. If any consent to settle is required for any reason, the party with that consensual authority must be personally present at the conference". Rule 222 (b) provides "on the joint request of all parties or by order of court, other or additional conferences may held at any time". When a party has submitted to the jurisdiction of court, the court has power over that party. When a party is represented by an insurance carrier, that carrier must have a representative present at settlement conferences, and by extension mediations. Proposed procedure: have the judge sign an order pursuant to stipulation of counsel that persons with authority, including insurance carrier representatives, shall be physically present at the mediation; set a date in the order for the mediation, as may be extended and reset by the mediator, at his/her discretion. When a party, or their carrier representative fails to appear, set an OSC Re sanctions before the judge.

Document the settlement - "DO WE HAVE TO?" Do you occasionally hear that question from parties or opposing counsel when the dispute has been settled, and the mediator insists that counsel prepare, and the parties and counsel sign a settlement agreement, but it's after midnight? You are tired, your clients are cranky and you want to go home. Are you crazy? The next morning opposing counsel could call you to say her client changed his mind.

Mediation settlements should be documented immediately and signed by all parties and counsel. The objective is to "Nail It Down!" If this is not done, there is a risk that the parties will change their minds.

After I have settled a dispute, the attorneys and I immediately prepare a complete settlement agreement from one of the form settlements I keep on computer. Attorneys modify the appropriate form settlement agreement to meet the unique needs of the parties. Drafting the settlement agreement with the mediator present immediately resolves language disputes that otherwise could take weeks to resolve.