Bar News - October 20, 2006
Alternative Dispute Resolution: The Care and Feeding of Rule 170 Mediators
By: Bruce L. Dorner
Iím one of the old guard. I was in the first wave of attorneys trained to serve under Superior Court Rule 170, which became effective Jan. 1, 1987, and was most recently amended in 2003. Maybe my gray hair gives me a little perspective, or maybe my gray hair clouds my memory. I write from a personal perspective, having served in four different venues of the Superior Court since the program started. Within this article, the term ďmediatorĒ encompasses all the aspects of a ďneutralĒ under Rule 170.
It has been a privilege to serve the Court in this capacity. As with any volunteer effort, there are differences among those who provide the service, those who schedule the service, and those who use the service. My intent is not to diminish the great work done by all involved in the process but to strengthen the process by increasing sensitivity toward the burdens imposed on the volunteer mediators.
To the attorneys who utilize our services:
Remember that we are volunteers. We forego paying clients to serve the needs of our fellow attorneys and their clients. Do not abuse us by submitting mediation statements three days before the session. Submit them at least 10 days before the session. Please mail them. Itís not good manners to send a fax with 52 pages of attachments and exhibits.
Donít require us to call the court to chase down your summary. Be sure to include substance in your summary. Donít send the mediator your case structuring summary with a different caption. The mediation summary should reflect the current status of interaction with the other parties. Also, reciting the text of the pleadings does nothing to help us understand the differences between the parties.
If you are going to settle your case in advance of mediation, please notify the mediator. We donít want to prepare for a case that is resolved or will be continued.
If your case is not ready for mediation, please notify the court well in advance of the scheduled date. Mediators need to prepare for the session by reviewing the initial pleadings, summaries of the parties, and often need to do some research. If you are going to request a continuance, donít forget to notify the mediator.
Mediation is a serious process. Treat it with the same respect that you treat a bench trial. Be ready. Be prepared. Please arrive on time. Prepare your client adequately. Let them know that the process is not like anything they have seen on television. Itís not a courtroom and there is no testimony.
Donít over schedule and tell the mediator that you have a ďshort motionĒ to argue and will be right back. Weíve all been there and know that a packed court schedule can turn a short motion into a two-hour wait in the blink of they eye. The mediator has cases waiting. Starting 30 minutes late impacts the rest of those waiting.
Have appropriate settlement authorization. Donít come to the table with $5,000 ďnuisance valueĒ authority when you know that the case is worth far more than that sum. Avoid putting us in a position where we have to spot you the proverbial dime to go make a phone call to a distant adjuster or supervisor. Mediation is not a surprise process. You should already know the position of the opposing attorney and the magnitude of the dispute.
Please donít come to the mediation and tell the mediator that the defendantís counsel hasnít had a chance to depose the plaintiff, and is not in a position to know how to value the case. In the same vein, if you represent the plaintiff, donít come to the mediation stating that you really canít settle the case because the plaintiff isnít at a medical end result, or that you havenít had a chance to nail down a critical witness or expert opinion. Mediation is not the place for a little free discovery. If youíre not ready, be honest. File your motion to continue and propose a new date when all parties will be ready.
If you have a complex or difficult case, be sure to ask for a half or full-day time slot for your case. You are not limited to only two hours to mediate your case. You will not get extra time unless you make the request.
If you have a unique situation or a difficult client, ask for a private session at the earliest opportunity to share your concerns with the mediator. The only way we know what is on your mind and can help you to deal with any special circumstances is if you share the information.
Mediation is not a trial. Be brief. Be concise. There is no need for theatrics or puffery. A good mediator has read the summaries, noted the differences, and reviewed the pleadings.
If you had a good experience with a particular mediator, feel free to ask the court for a special assignment on your next case. It may not be practical in all situations, but you may ask.
Show your appreciation. Mediators are people too. Say ďthank youĒ for helping to move your case forward. If the case resolves after the mediation, please tell the mediator. Maybe a friendly phone call or note of appreciation is appropriate after the case resolves. Send a copy to the Clerk of Court so they get feedback as to how well the mediator did in handling your case.
To the Clerks of Court:
Remember that we are volunteers. Treat us as you would treat a visiting judge. Donít simply pass a pile of case folders across the counter and holler out a courtroom number or conference room location. A cup of coffee goes a long way. A parking space at some courthouses goes even further.
Make sure the mediator has sufficient space for a private caucus and the assistance of a bailiff or other court officer. If you know that there are several parties, counsel, adjusters and other camp followers listed on the case, please provide adequate space and chairs for everyone. Know your mediators. Try to accommodate the style of the mediator as you would the style and requests of a visiting judge. And, if we ask for too much, let us know when we overstep our bounds.
Visit the mediation session on occasion to say thanks to the mediator. Watch part of the session if the parties are agreeable. Let the attorneys, parties and mediator know that the Court considers this a very important process. Remember that the attorneys and adjusters do this for a living. The plaintiff and many defendants have never been to court, let alone to a mediation session. They are impressed when a clerk or deputy clerk simply stops in to say hello and shake hands. It spreads goodwill and enhances the image of the court system.
Donít schedule a mediator for more cases than can be effectively handled in a day. Remember, we have to prepare and review case summaries. Two hours may not be adequate for a four-party case with cross complaints and the like. If the court file is three inches thick, itís probably a case that needs more time and attention in mediation. In a complex case I have spent in excess of eight hours in review and preparation, only to have the session canceled a day before the mediation. The time commitment to be an effective mediator is significant. Do not abuse mediators by depriving them of otherwise billable hours.
To the Judges:
Effective mediators reduce the load on your calendar and free you up to handle more difficult and complex matters. When you know a mediator is at the court house, stop by, say hello and thanks. Itís nice to know that the judicial side of the equation considers our contribution beneficial to court.
When meeting with the attorneys in the structuring conference, make inquiry as to whether the case needs more than a two-hour assignment before a mediator. Let the attorneys know that if the case expands after the initial assignment is made and they need more time, they should immediately notify the clerkís office or file an appropriate motion.
When motions to continue a mediation session are filed on short notice, consider whether sanctions are appropriate for abusing the process. If we spent hours preparing for a case and it is continued the day before the session, it diminishes our desire to continue serving the court.
Sometimes the mediators are perplexed about how to deal with a particular situation. Having a judge available for a quick consultation or reality check is invaluable. Mediators donít have the ďback roomĒ experience of a Superior Court judge and would benefit from the knowledge which can be shared (within the confines of Rule 170 and ethical considerations).
To the Mediators:
When you sign up to serve on a particular date, keep it open on your calendar. If you have a conflict, notify the Court promptly.
If you donít get all the mediation summaries at least 10 days before the scheduled session, call the ADR clerk and ask for assistance. Itís not our role to start calling each attorney in the case and possibly taint our role as a neutral.
If you receive summaries that are late or incomplete, consider whether further contact with the clerkís office is warranted. In some cases you may feel the need for judicial intervention.
Take the time to carefully read the summaries and understand not only any offers or demands, but the issues, concerns, and positions of each party. Remember, there are real people who donít have the foggiest idea of the complexities of the legal system. Itís our role to ensure a level playing field so that the parties can conduct the mediation in an open and frank fashion with the intent of allowing them to settle the matter. Mediators donít determine the outcome. We merely provide the mechanism for the parties to achieve the result.
If the case doesnít settle at the table, be sure to leave the door open for further discussion by the parties. Donít consider mediation as failed just because a stipulation isnít signed at the session. Many difficult cases simply require a little time, and then a settlement can be achieved.
Thanks for hanging in there all these years. Those of us who have served, and continue to serve, know that it improves our skills in representing clients and presenting our cases.
Bruce L. Dorner is an attorney and principal of the Dorner Law Office in Londonderry; he also serves as a mediator.