Wednesday, August 1

The Case For Mediation In The Defense Of Complex Commercial Litigation

Spotted by Christopher Annunziata in the August issue of The Metropolitan Corporate Counsel an article titled The Case For Mediation In The Defense Of Complex Commercial Litigation.

I'm not as polite as Chris...have a read of this, then read more nonsense here if you can take it;

"The Critical Importance Of Selecting A First-Rate Mediator...It is equally essential that the mediator be motivated by ego and additional fees to obtain a resolution... An effective incentive for a mediator is where an agreed upon significant bonus, in addition to the hourly fees, will be paid if the mediation results in a resolution.

Additionally, it is important to ensure that the mediator is willing to communicate to the parties that he or she is, in effect, functioning as an arm of the court at the outset, and is, thus, obligated to go to all necessary ends to resolve the matter.

An effective mediator exercising this role might threaten to report parties to the judge for non-cooperation (i.e., insistence on unrealistic resolution amounts), run the mediation for consecutive ten-hour days, or demand that parties bring in their respective CEOs to meet with him or her if the process gets bogged down" [my emphasis]

There is however some wisdom in the same issue at Strategies For Successful Interaction With ADR Neutrals


Colm said...

I guss they took te mantra of "making the mediator work for you" a bit too much to heart.

Beyond this BS, at least litigators are actually thinking about meditaion - that's good to be a good thing ...?

Geoff Sharp said...

Colm, you are quite right and it's wonderful that active litigators now have mediation front and centre.
In hindsight my post is a little churlish.

Diane Levin said...

Nonsense, Geoff, you were honest. Churlish, never.

And here in my neck of the woods, contingent fee arrangements for mediators, including a "significant bonus...paid if the mediation results in a resolution", constitutes a serious ethical breach.

And definitely don't get me started on the absurd claim that a good mediator should possess a "strong judicial presence".

Thanks for being outspoken, Geoff--it's why I'm a big fan of Blah...Blah...


Anonymous said...

Hey, I'm trying to build a practice, not alienate potential clients!! Seriously, I was a little taken aback by the article's constant suggestion a mediation cannot be successful unless you have a mediator willing to browbeat the parties.

I agree with Colm that its a good thing that litigators are talking about mediation and beginning to approach it with the level of seriousness heretofore reserved for a summary judgment hearing or trial.

Victoria Pynchon, said...

and who the heck is that new guy scowling at me at the top of your blog big guy? the invitation for a beverly hills bar-b-q is hereby revoked!! (oh, the laughter makes my RIB hurt!) As my step son Adam likes to say, it's a good thing I like my own sense of humor

Victoria Pynchon, said...

damn, my last comment didn't make it through -- the one before the smart-ass comment about the new guy on your blog; anyway, the RESPONSIVE comment was HILARIOUS; you'll just have to IMAGINE it . . .

Anonymous said...

oops, I said "damn" but that's just the kind of tough no nonsense mediator who would say "bring it on, mission accomplished, make my day, shock and awe and -- at impasse -- well, there are unknown knowns and known unknowns and unknown unknows . . . "

but seriously geoff, i'd deprive the litigants of potty breaks and snacks if they'd give me a cut of that $75 million settlement AND I'd break out my best set of 14 karat thumbscrews as well

. . . you don't have yours yet? i'll send you my new "Americana" collection along with a super-secret water-boarding decoder ring with the extraordinary rendition extra AT NO ADDITIONAL COST TO YOU! because WE'RE AMURAKA gol' dang it!

wait a minute, I hear an IED exploding next door . . . they HATE our freedoms.