View the“Alternative Dispute Resolution” issue of COMMUNIQUÉ (May 2019), the official publication of the Clark County Bar Association. See features written by members of Nevada’s legal community listed as follows:
- “Baseball Tips for a Successful Mediation” by Hon. David Wall (Ret.)
- “7 Ways to Settle Your Case by Co-Negotiating With Your Mediator” by Jay Young, Esq.
- “Outside-the-Box ADR” by Paul M. Haire, Esq.
- “Death by Arbitration: A Critique” by Lauren D. Calvert, Esq.
- “Summaries from 3-31-2019” by Joe Tommasino, Esq.
Additional content may be found in the 32 pages of the full color issue of the publication (print and PDF versions), including these special features:
- “A Pirate Looks at 40 ” By Clark County Bar President Jason P. Stoffel
- View from the Bench: Civil Rule Changes Highlight State of Judiciary by Chief Justice Mark Gibbons
- Pro Bono Corner: The Rewards of Pro Bono Work by Aviva Y. Gordon, Esq.
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© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (May 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Baseball Tips for a Successful Mediation
By Hon. David Wall (Ret.)
Baseball player and author Jim Bouton once wrote, “A ballplayer spends a good piece of his life gripping a baseball, and in the end it turns out that it was the other way around all along.” With baseball season now in full swing, it’s a perfect time to use America’s pastime to illustrate ways to maximize your chances for settlement at mediation.
Preparation is always important
Successful teams analyze their own players’ strengths and weaknesses so as to put them in position to succeed.
Don’t just focus on the best parts of your case. All too often, I read mediation briefs extolling the virtues of the case from that party’s perspective without ever mentioning the significant weaknesses that the other side will seek to exploit. It’s not as though the mediator isn’t going to find out about that admission of liability or those serious pre-existing conditions. It’ll be what we spend most of the session discussing. So, address it up front with the mediator and also with the client. Recognize that those issues necessarily drive opinions about settlement value and try to get the client to understand that as well. Give the mediator a realistic portrayal of the chief issues, including the evidence that hurts your case and the evidence and arguments available to you to try to ameliorate the damage.
Hitting coaches tell batters to have a plan at the plate. If you know the pitcher likes to work you with fastballs on the outer half, you might plan on hitting to the opposite field instead of trying to pull the ball.
Before mediation, it’s important to consider reasonable goals for resolution. In many cases, counsel can pretty accurately gauge a likely settlement range. Anticipate that range and use it to manage client expectations. Too often, I see parties that have only been told about their best result at trial, and they see the mediation as simply a tool to get the other side to capitulate to the client’s “best day.” Those unfamiliar with the mediation process need to understand that resolution involves give and take. Mediation involves understanding the risks of going forward with litigation and eliminating those risks through compromise.
Mediate with control and reason
Pitching coaches will say that throwing 93 miles per hour with control usually leads to better results than throwing 98 miles per hour and wild.
It’s important to have rational expectations at mediation. The settlement range you anticipate should have a reasonably positive result for your client at trial at one end, and a reasonably positive result for your adversary on the other end (factoring in the fees and costs necessary to get there). The case is likely to resolve somewhere in that range.
No one expects your opening offer or demand to be at the poles of that ultimate settlement range, but at least have an eye on that range. For instance, a personal injury case might have a settlement range of $400,000 to $1 million, given liability in Plaintiff’s favor, but with issues of pre-existing conditions affecting a significant portion of the damages. An opening demand of $22 million will likely elicit an opening offer of $1,000, and vice versa. It will result in polarizing the negotiations, and more than half of the session will be used just to get the parties within sight of the settlement range that both sides (and the mediator) probably anticipated before we started. It’s fine to choose an opening number outside of the settlement range, but your chances of creating meaningful negotiations improve if you don’t start the discussion at a level that will immediately create animosity. I often suggest starting with your realistic best result at trial, taking into consideration the costs of getting that result. Then negotiate from there, recognizing and eliminating the risks.
Make the best use of your mediator
Hopefully you’ve chosen a mediator whose opinion you trust on some of the issues you face. He isn’t your coach, as he has a duty to assist both sides. But in the right case, it can be helpful to talk to the mediator in the days preceding the session to address issues likely to arise and to formulate a game plan for dealing with them. In most cases, you share a common goal of a reasonable resolution.
Hon. David T. Wall, Ret., served on the District Court bench from 2003 to 2010, and works as a Mediator and Arbitrator for JAMS in Las Vegas.
7 Ways to Settle Your Case by Co-Negotiating With Your Mediator
By Jay Young, Esq.
Mediation is said to be assisted negotiation, with a mediator acting as your co-negotiator. If that is true, are you taking full advantage of the ways a mediator can assist you to control the process of the mediation? Ineffective mediation advocates rarely think to do so, clumsily attempt to manipulate the mediator into doing their bidding, or only see the mediator as someone delivering numbers to the other side. A more effective approach is to openly discuss the ways you would like the mediator to assist you “in the other room” or even in your own room. Here are some possibilities you may consider:
1. Prepare your client.
No, I mean really prepare. I am amazed when parties have spent years and untold amounts of money preparing a case for trial (that likely will not happen except in a tiny percentage of cases), but do not take the time to orient their client to the mediation process. “A client who understands the mediation process, has received guidelines for conduct during mediation, and has faced the realities of the dispute can contribute significantly to achieving resolution.” John Paul Jones, Mediation Advocacy: Fundamental Principals and Guides, 1999 MEDIATION & ARB. SEMINAR L-1, L-7. Many times, a client’s mental fatigue—from making too many decisions within a short amount of time without being prepared for it—will impede settlement at mediation. Preparation can help settle your case.
2. Call the mediator privately prior to the mediation.
Many mediators call counsel separately for an ex-parte pre-mediation caucus. If your mediator doesn’t do that, consider calling the mediator yourself. Have a discussion about the case and its unique needs. Give your opening statement. Educate the mediator about your client, the relationship with the opposing party or counsel, and how the mediator can help your client through the process. I often learn more from these conversations than I do from briefs.
3. Ask your mediator to float an idea as his or her idea to the other side.
If your client might look “soft” or “weak” making a suggestion, ask the mediator to pitch it as his or her idea.
4. Ask the mediator to have a frank, evaluative conversation with an unrealistic client.
If your client has an unrealistic view of the case and will not listen to you, alerting the mediator to this reality will help the mediator deliver the right message to assist your client throughout the mediation.
5. Ask the mediator to allow your client to tell his or her story.
Many times clients are dissatisfied with litigation/mediation because they never get to tell their story in a way that isn’t restrained by the style of questioning at a deposition or the limited nature of written testimony. Clients who are allowed to tell their story to an empathetic mediator in a way that is unfiltered are more satisfied with the process. It will also allow someone (if only the mediator) to express empathy for their situation, apologize that the client had to endure a hardship, and express the hope of resolving the matter through settlement.
6. Brainstorm creative ways to save an important business relationship.
A party may desire an on-going relationship with the party in the other room. That fact will alter the way that the party and the mediator should approach problem solving at mediation. Brainstorm ideas on what you want the future business relationship to look like and then solve the problem that brought the parties together for the mediation.
7. Honestly discuss the weaknesses in your case.
All cases have strengths and weaknesses. Unprepared and weak advocates who insist their case has no weakness are at odds with the truth when a mediator asks how their client plans to overcome the case’s shortcomings. They likely oversold the case to the client and may be too embarrassed to admit a weakness and therefore must appear strong by arguing the point. A wiser approach is to intelligently accept that someone “may consider that as a weakness, and we accept that as a possibility. If it is a reality, we may have some trouble. However, we think that we can overcome that perception in the following way . . .”
Good luck on your next co-negotiation . . . I mean mediation.
By Paul M. Haire, Esq.
Alternative dispute resolution or ADR typically describes methods for resolving disputes without trial in court. Mediation and arbitration are the most common private ADR platforms. Lesser-known forms of neutral-based mediation and arbitration, including hybrids, offer creative alternatives within those standard platforms.
Co-mediation involves two or more mediators working together to resolve an ofttimes complex dispute. The combined expertise of the mediators assists the parties in better identifying issues and exploring a broad range of solutions. For example, a case might require the authoritative disposition of a former judge, but also the technical skill or subject matter expertise of an attorney mediator. Other cases might have gender sensitivities. Having male and female co-mediators in workplace harassment cases can offer significant value in elucidating interests and breaking impasse.
In a Med-Arb, the parties agree in advance that if the dispute does not resolve through mediation, the dispute will proceed to binding arbitration. The parties typically determine in advance whether the same neutral will also serve as arbitrator if the dispute does not resolve at mediation. Although the use of the same neutral is more efficient, some neutrals are reluctant to serve as both mediator and arbitrator. Parties may also be reluctant to share confidential information with a mediator who may later provide a binding disposition. If the parties are familiar with a mediator, they are usually comfortable entrusting the ultimate decision of the case to that same person as arbitrator.
Arb-Med is typically conducted by the same neutral with arbitration proceeding first. The neutral prepares a written arbitration award and seals it. Mediation of the dispute then proceeds. If successful, the arbitration award is never published. If mediation is unsuccessful, the award is published. A potential drawback to the process is the fear the neutral could coerce a settlement mirroring the sealed arbitration award. Trust in the neutral to adroitly promote a voluntary settlement at mediation is again central.
In advance of mediation, the parties agree that in the event of impasse in negotiations, the neutral will determine a final disposition that becomes an award or judgment. Typically, the neutral’s disposition cannot be higher or lower than the parties’ positions at the time of impasse. The procedure essentially involves a pre-determined agreement to accept a mediator’s proposal if an impasse cannot be bridged.
High-low arbitration contemplates the parties agreeing before arbitration on the minimum and maximum award. The arbitrator is usually not told the limits. The arbitrator’s award must fall between the high-low amounts. If not, the award is increased or decreased according to the parties’ pre-determined parameters.
Certain classes of professional baseball players are subject to salary arbitration. During the salary arbitration hearing, both the player and the team present their cases to a neutral panel. The panel chooses between the player’s and the team’s salary offers. Because the panel must choose one of the two offers, the player and team should both present reasonable offers since the panel will choose the offer it believes better represents the player’s true value. This process can be utilized in litigation and pre-litigation matters. In baseball mediation, at impasse, each side submits its final position to the mediator who then decides for one or the other position. The mediator’s decision then becomes a binding award or judgment.
Golf arbitration operates like baseball arbitration, except the arbitrator is not directly told the parties’ positions. The party’s position closest to the arbitrator’s decision then becomes a binding award or judgment. In golf mediation, when impasse occurs, the mediator makes a final determination of a fair outcome and holds it confidential. The parties, in turn, submit their final positions. The party whose final position is closest to the mediator’s determination becomes a binding award or judgment.
Early Neutral Evaluation
A primary reason cases do not settle sooner than later is because the parties, or their lawyers, have misapprehended the case. This leads to stubbornness about the probable case outcome, which leads to intractability in negotiations, and ultimately litigation. ENE is a process where a neutral assesses the evidence and listens to the parties’ positions, and then gives the parties an evaluation of the case. This early reality check can avoid mistaken notions of value and viability of a case before they become a hindrance.
Paul M. Haire is a full-time neutral with Advanced Resolution Management. Previously, he litigated primarily commercial and tort cases representing both plaintiffs and defendants.
Death by Arbitration: A Critique
By Lauren D. Calvert, Esq.
When consumers purchase a product or service, or when workers are hired for employment, the transaction increasingly involves a contractual arbitration provision. These provisions mandate resolution of disputes through a specific arbitral forum, prohibit suing the drafting party in court and waive rights to a jury trial or to join a collective action. These clauses are currently used by all brokerage firms, the largest insurance companies (AIG, Aetna), financial firms (American Express, Chase Bank), non-financial “new economy” firms (Uber, AirBnb), online retailers (Amazon, Ebay, Walmart.com), music service providers (Apple, Spotify) and wireless providers (Verizon, AT&T, T-Mobile) and govern over half of U.S. workers’ employment. Many of these arbitration agreements exist solely online and are unknowingly assented to with a simple click of the mouse. They are a scourge.
The popularity contest
An analysis of 9,000 arbitrations revealed why corporations love arbitration: industry friendly arbitrators are 40 percent more likely to be selected over consumer friendly arbitrators, and companies are systematically better at selecting arbitrators than individuals. Egan, Mark and Matvos, Gregor and Seru, Amit, Arbitration with Uniformed Consumers, Harvard Business School Finance (Oct. 4, 2018). The average firm sampled participated in roughly 100 different arbitrations, and their advantage in selecting the arbitrator was huge, decreasing award amounts on average by roughly $16,000.
Because industry-friendly arbitrators are more likely to be selected, and thus compensated, arbitrators are potentially incentivized to develop a reputation as such, inducing mounting competition among arbitrators. A one standard deviation more-industry-friendly arbitrator will grant awards twelve percent smaller, translating to the consumer receiving $21,000 less on a median $175,000 case. If an arbitrator was selected randomly, individual awards would rise approximately $40,000, per the study. Truly, “the arbitrator is the process… the selection of an appropriate arbitrator or arbitration tribunal is nearly always the single most important choice.” Stipanowich, T., Protocols for Expeditious, Cost-Effective Commercial Arbitration: Key Action Steps for Business Users, Counsel, Arbitration & Arbitration Provider Institutions (2010).
Not so epic rulings
The law unequivocally supports this favoritism. One of the most stunning doctrines in arbitral jurisprudence is the severability doctrine. Since Prima Paint in 1967, 388 U.S. 395, 87 S.Ct. 1801, the Supreme Court of the United States has held that courts must enforce arbitration clauses within contracts even if the entire contract is invalid or unenforceable. The Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), found arbitration contracts requiring employees to arbitrate individually rather than collectively were valid and not violative of the NLRA. Since its decision in U.S. Home Corp. v. Ballesteros, 415 P.3d 32 (Nev. 2018), the Supreme Court of Nevada has issued two unpublished decisions trumpeting the FAA over state laws aimed at critically viewing unconscionable arbitration provisions: U.S. Home Corporation v. Lanier, 2018 WL 6264809 (Nev. Nov. 28, 2018) and Greystone Nevada, LLC v. Huynh, 2018 WL 6264756 (Nev. Nov. 28, 2018).
Mandatory arbitration + class action waivers = double trouble
An analysis of 92 decisions from federal courts citing Epic between its issuance in May of 2018 and the year’s end found the bulk concerned class actions: about 53 percent of circuit court cases and 71 percent of district court cases. Mulvaney, Erin, ‘Epic’ Impact: How a Major SCOTUS Decision in Favor of Arbitration Is Shaping the Landscape for Workplace Lawsuits, The National Journal (Feb. 28, 2019). Of those, 53 percent were compelled to arbitration, and arbitration was revived as a live issue in another six percent. By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination.
The importance of class actions can hardly be overstated. Class actions ensure that corporate giants who engage in widespread harm – but do so minimally against each individual plaintiff– do not profit from misdeeds and must compensate those individuals for their injuries. They deter future wrongdoing and bring about some of the most impactful social changes. When companies push disputes out of court, and then impose conditions to make impossible pursuing those disputes in arbitration, the public doubly loses. As Justice Elena Kagan in her Epic dissent stated, the majority tells those victims, “Too darn bad.”
Stagnancy and Change
Has the Supreme Court through Epic made it harder for individuals to vindicate their rights? Undeniably. Workers and consumers continue to find ways to deal with the hurdles. Certain plaintiff firms have filed thousands of arbitration cases at once, and demanded arbitration fees be paid by defendants up front. Corporations claim it’s guerrilla warfare. Surging backlash also has developed in the wake of #metoo, as arbitration rules contain confidentiality provisions, viewed by many as unwarranted where sex, gender and race based causes of action are alleged. Public pressure may ultimately be effective in ways the court is not. In the meantime, arbitration is not the touted simple, cheap and easy way for individuals to bring their grievances. Between 2010 and 2014, only 505 consumers went to arbitration over a dispute of $2,500 or less. Silver-Greenberg, Jessica and Gebeloff, Robert, Arbitration Everywhere, Stacking the Deck of Justice. New York Times (Oct. 31, 2015). Verizon, which has 125 million subscribers, faced 65 consumer arbitrations in those five years, and Time Warner Cable, with 15 million customers, faced seven.
Lauren Calvert is an attorney at Messner Reeves LLP, where she practices general civil litigation.
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