Neutral Corner: What they said about mediation in 2017

December 27, 2017

neutral-corner-vanwinkle-john.jpgA quick look back at some interesting observations about mediation from journals and law review articles in 2017:

“In Defense of Lying: The Ethics of Deception in Mediation,” Tarlow. 11 No.2 Journal of the American College of Construction Lawyers Journal, Sept. 2017:

“Deception occurs in nearly every mediation by the parties’ attorneys and mediators alike, to varying degrees.” This conclusion by Buzz Tarlow in “In Defense of Lying: The Ethics of Deception in Mediation” quoted and echoed an earlier observation by the late Hon. John W. Cooley in 1997 that: “Consensual deception is the essence of caucused mediation. It is rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by mediators in some form”

Although he considered his statement accurate, Judge Cooley, it is submitted, understood the difference between “puffing” and outright deception.

“An Insider’s Perspective: Mediation Considerations,” Spier. 78 Oregon State Bar Bulletin. 34, Oct. 2017

“Think twice before agreeing to consider a mediator’s proposal. The problem that I am seeing is that counsel more and more seem to be planning for the procedure. Parties hold back, making it more difficult for me to get a sense of how far the envelope can be pushed for either or both sides.”

Rick Spier is a full-time mediator, a former president of the Oregon State Bar and we had a mutual friend, the late Sid Lezak, long active in the American Bar Association Section of Dispute Resolution. Rick quoted Sid’s observation that we should all remember mediation is part of litigation and therefore, said Sid, ‘Mediation is a contact sport.’”

“Are Legal Disputes Just About the Money? Answers From Mediators on the Front Line,” Jerry Weiss, 19 Cardozo J. Conflict Resol. 1, Fall, 2017.

“The back and forth of the distributive bargaining model that we are accustomed to, seems to my experienced eye, outdated and contrary to the interest of durable solution. Hand-to-hand combat too readily digresses in the ‘bargaining process’ of the argument thereby continuing the competition and all its negative forces. Add to this antiquated method the increasing velocity demanded by the market and supported by the warp speed technology of our time, and what results is a toxic mix.”

“Why Using the Jaffee Balancing Test Can Stabilize the Predictability of a Federal Mediation Privilege,” Spencer. 32 Ohio St. J. on Disp. Resol. 295 (2017)

“One of the most uncertain areas of mediation law is the existence of a federal mediation privilege. Federal courts should use their ‘reason and experience’ to apply the balancing test established by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), to recognize a federal common law privilege because the interests promoted by a mediation privilege greatly outweigh the need for probated evidence.”

“Living the Dream of ADR: Reflections on Four Decades of the Quiet Revolution in Dispute Resolution,” Stipanowich. 18 Cardozo J. Conflict Resol. 513 (Spring, 2017)

“While there is no question that mediation has changed the practice of law, it is also clear that lawyers have had a significant impact on the practice of mediation. For better or worse, the practices of mediators and the processes they manage are bound to reflect the gravitational pull of lawyers. For example, while the International Academy of Mediators survey data showed a variety of reasons why mediators employ caucuses, comment by California mediators suggests that their heavy emphasis on caucus was often the result of pressure from the legal advocates. While there may be perfectly good reasons why lawyers want to avoid or minimize joint sessions, it is questionable whether avoidance of joint sessions should ever be justifiable as a blanket policy. It is hard to see the latter as anything other than a means of concentrating maximal control in the hands of counsel, which may not be the best thing for clients.”

“The New Courts,” Rabinovich-Einy, Katsh. 67 Am. U. L. Rev. 165 (Oct. 2017)

“As a growing portion of our lives takes place online, our disputes will also require online mechanisms for addressing them, the majority of which will not be court-connected. … While online court systems are still seen as the exception and have generated heated debates, we can expect the consensus over such systems to grow over time. At the moment, algorithms are not a substitute for judicial resolution, which continues to be human-based. We are in the midst of a deep change in our courts. Novel court processes are emerging, ones that are less adversarial, more flexible, dynamic, accessible, and efficient, and hopefully, more balanced.”

“The Bellwether Settlement,” Zimmerman. 85 Fordham L. Rev. 2275 (April 2017)

“For years, courts have relied on ‘bellwether trials’ to resolve large numbers of similar lawsuits. In a bellwether trial, the parties select a small group of cases for jury trial out of a larger pool of similar claims. … But instead of bellwether trials, the … court organized a system of bellwether mediations. Following forty representative mediations, the parties resolved more than 2000 lawsuits … The hope behind bellwether mediation is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, this process attempts to (1) yield important information about claims remedies, and strategies that parties often would not share in preparation for a high-stakes trial, (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.”

Note: The principles behind the “bellwether settlement” were present in the common practice in the settlement of tort cases in the Midwest in the ‘70s and ‘80s. Injury cases were “worth,” for settlement purposes, three times “specials.” Although this practice has been assigned now to computer programs, similar dynamics are found in connection with the settlement negotiations of certain types of specialized commercial cases. For example, there is sentiment among many corporate defendants and insurers that certain 10B5 securities class actions should settle between 10 percent to 12 percent of total potential monetary damages. Such an approach assumes agreement on certain damage metrics, such as the applicable statute of limitations. Also, the sheer number of mediated cases since the advent of the practice in the early ‘90s has created a mammoth data bank of settlements, with the result that experienced repeat players — mediators, counsel and clients — have years of “bellwether” settlements to use as guides.•


John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. The opinions expressed are those of the author.


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