Yesterday, Today and Tomorrow: ADR in Review
October 27, 2014
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Ho n. Lynn Duryee (Ret.) es, judicial settlement conferences
existed last century, and what frightful
experiences they were. Jittery
lawyers were separately summoned
into unwelcoming judge's chambers
while litigants languished anxiously in the
hall, excluded from high-level discussions
about their case. Omniscient judges wasted
not a moment discussing legal arguments or
parties' interests; instead they used the allotted
10 minutes to bludgeon the lawyer with
horror stories about juries and verdicts and
all the ways the case could and would be lost
at trial. Ultimately, the judge would tell the
lawyer how the case should resolve and would
order him to go forth and obtain the client's
consent. Judges routinely scheduled six such
settlement conferences in a single afternoon,
and in this way they did settle many cases.
The Trial Court Delay Reduction Act struck
like lightning in 1986, and suddenly the courts
– not the lawyers! – were managing civil cases.
Have the parties been served, has an answer
been filed, is discovery occurring, will the
case be ready for trial in 12 months, and, hey,
what about this thing called ADR? Practically
overnight, "ADR" became the term on every
lawyer's lips, and what it mostly meant then
was "judicial arbitration" – a one-day preview
of the evidence before an attentive colleague
who, more often than not, issued a
well-reasoned award. But as mediation began
to take hold, many arbitrators dispensed with
the pesky rules of evidence and started talking
informally to participants. Visionaries
studied and taught mediation, and within a
few years, civil litigators embraced the opportunity
to settle cases with neutral colleagues,
thus dodging significant litigation expenses.
Yesterday, Today and Tomorrow:
ADR in Review
Practically overnight, ‘ADR' became the term on every lawyer's lips,
and what it mostly meant then was ‘ judicial arbitration' – a one-day
preview of the evidence before an attentive colleague who, more
often than not, issued a well-reasoned award.
Hon. Lynn Duryee (ret) is a neutral with JAMS at its
San Francisco Resolution Center. She serves as a
mediator, arbitrator and referee in disputes across
multiple practice areas. Prior to joining JAMS in March,
she spent 21 years as a Trial Court Judge, Supervising
Civil Judge and Supervising Criminal Judge to JAMS.
As private mediation gained in popularity
and effectiveness, courts took notice.
Forward-thinking courts partnered with
skilled neutrals to create mediation programs
for early, out-of-court settlements
and to improve the courts' Mandatory Settlement
Conference programs. Experienced
neutrals modeled effective settlement techniques
for untrained judges. Some courts
took the plunge and formed settlement conference
departments, headed by capable
judges working alone or with volunteer neutrals.
By 2000, it was unthinkable that a civil
case would go to trial without some effort
at dispute resolution.
Mediation has evolved in the last 20 years,
as styles and tools have come in and out of
fashion. Joint sessions, once considered the
gold standard for convening a mediation,
are not used very often anymore. The Mediator's
Number, once the magic bullet for
settling the impossible case, is now used as
infrequently as a pay phone. Today's parties
often negotiate in brackets. Tomorrow?
Brackets may seem clumsy and dated, replaced
by the newest-new mediation app.
Skilled mediators – and users of their services,
for that matter – are constantly searching
for new and better ways to help disputants
achieve more satisfying outcomes.
One trend is towards psychological healing.
In private mediation settings, as well as
in court settlement programs, psychologists
are joining judges and lawyers to assist in
the process. The goal is to have better listening,
deeper understanding and a resolution
more profound than "an end to the lawsuit."
For many years, the offering of an apology
has been instrumental in settling an emotional
case; now, some mediators are taking
the next step and working with embattled
parties on the concept of forgiveness. These
mediators coach clients on the process of
forgiveness and provide them with a path to
release the difficult feelings of the past in
order to enable them to move forward with
a clean slate.
Another trend in ADR is "mandatory" mediation.
While it has existed since 1981 for
child-custody disputes, it is relatively new to
the civil scene. Real estate contracts, partnership
agreements and construction contracts
often call for mandatory mediation prior to
initiating litigation. The failure to participate
in mediation may prevent the party from recovering
otherwise recoverable attorney's
fees. It can be tricky to treat a voluntary process
as mandatory and lawyers are sometimes
nervous about pre-filing mandatory
mediation because they have not had a
chance to conduct discovery. However, parties
who achieve settlement before filing, report
that while they didn't know everything
about both sides of the case, they knew
enough to make an intelligent decision.
In Sonoma County and elsewhere, mediation
is used to resolve contentious discovery
disputes. In 2008, as part of an effort
to reduce the judges' backlogs of Law & Motion
matters, a consortium of lawyers and
judges developed the Discovery Facilitator
Program, Sonoma Local Rule 4.14. This program
allows litigants to have their discovery
disputes resolved with the help of an experienced
and volunteer neutral. Parties can
see the Discovery Facilitator before or after
their discovery motion is filed. Before the
program went into place, the judges' calendars
were packed with time-consuming discovery
motions. Now, Sonoma judges report
that they hear no more than a handful of
discovery motions each year.
After decades of decreasing in popularity,
arbitration is back. Many plaintiff 's lawyers
are electing arbitration over mediation because
of perceived frustration with their opponent's
failure to bring decision-makers to
the table. With arbitration, the plaintiff 's
lawyer can put on his case before a neutral
and obtain a viewpoint on the value of the
case. Even if the other side doesn't put on a
defense or files for trial de novo, a thoughtful
arbitration award can be helpful down
the line when the decision-maker is ready
to make a settlement offer.
Finally, judicial standards have changed
to keep up with the times. Judicial settlement
conferences today bear little resemblance
to those scary proceedings of yesteryear.
They are now overseen by trained judges
and neutrals who devote significant
amounts of time to the process. Parties are
included in the discussions, and most of the
day is devoted to listening to the litigants.
As of January 1, 2013, the Canon of Ethics
for judges relating to settlement conferences
was amended to read: "At all times during
such resolution efforts, a judge shall remain
impartial and shall not engage in conduct
that may reasonably be perceived as coercive."
It's official! Bludgeoning, which never
seemed like a great option, is not permitted.
In any event, good neutrals don't need it –
they can help the parties reach the finish line
without any bloodshed at all.
Reprinted with permission from the October 27, 2014 edition
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