Achieving success in complex litigation mediation

Mediation has become an increasingly important part of the litigation process, particularly in complex cases. Each matter presents its own challenges--often involving class actions or Judicial Council Coordination Proceedings (JCCPs)--as well as multiple parties, evolving dynamics among counsel, competing theories of liability and the involvement of insurance.

Feelings of satisfaction and a sense of relief occur when a case of this magnitude resolves without the uncertainty, time, stress and expense associated with a trial. For a successful mediation, it is imperative that counsel approach it with an open mind, thorough preparation and civility. Both the mediator and counsel must remain nimble and patient, and utilize listening skills as events unfold.              

Is the case ready for mediation?

Some cases resolve early through mediation after a good faith exchange of key documents. Wage and hour cases with an identifiable class are one example where funds otherwise spent on costly litigation can be utilized to reach a speedy and comprehensive resolution.

However, most complex cases are not ripe for resolution at the early stages of litigation. For example, the disastrous Palisades Fire has led to thousands of claims. I have direct experience with these cases, as they were all consolidated in my complex courtroom. The attorneys prepared a stipulated and lengthy case management order, which included a schedule for document exchange, inspections by experts regarding the origin of the conflagration, the preparation of a consolidated complaint and early motions. Many preliminary issues may need to be adjudicated and further developed. The attorneys will decide the optimal time to conduct a fruitful mediation. Even then, the allocation of settlement proceeds among the plaintiffs will require its own process.  

Preparation

Preparing for any mediation involves setting reasonable expectations with your client, determining financial goals, negotiating strategy and preparing a strong brief. All parties must agree that decision-makers will directly participate in the mediation. Transparency is essential in a complex case, and I urge the parties to share their briefs with each other, not just with the mediator. In this way, everyone has an understanding of the core and ancillary issues so that the parties may better evaluate the strengths and weaknesses of their cases.   

Counsel may wish to prepare two versions of their mediation brief: one for the mediator in which nothing is held back and another for opposing counsel in which certain strategies and numbers are not shared in advance. This is a reasonable alternative to not sharing briefs at all, which often results in unproductive mediation in a complex case.

Complex mediation often involves numerous parties and disparate legal positions. Expecting a resolution in one session may place undue pressure on the parties as well as the mediator. Another option is to consider having two mediators work together in cases with multiple defendants. When multiple parties are engaged with a mediator at the same time rather than waiting for the sole mediator to return after caucusing with other parties, time is saved.                

The mediation process

After the briefs have been filed and shared with all counsel, the mediator should conduct a pre-mediation conference with each party. Client control issues, relationships with other counsel and insurance coverage are a few examples of confidential information that should be shared with the mediator in advance so that they do not become stumbling blocks later.

Complex mediation does not lend itself to a one-size-fits-all approach. Below are several examples where varying strategies may be most effective: 

·         Mesothelioma cases: These often involve multiple defendants, so the plaintiff is best served by making a demand to each party after considering issues of exposure and causation.

·         Mass torts filed as class actions, JCCPs or individually (e.g., fire, sexual assault, product liability): The plaintiff could make one global demand but should consider separate demands to unaligned defendants after analyzing potential liability and available insurance.

·         Construction defects cases: The plaintiff should make a global demand against the general contractor, who will then seek contributions from the subcontractors after evaluating the degree of alleged culpability and insurance coverage.

·         Securities fraud class actions: The best approach is often to make separate demands to each unaligned defendant, which are made available to all parties. A settlement with one often leads to a recalcitrant party modifying their negotiation strategy.

·         Employment class actions: These are similar to individual, two-party cases, although agreement on the size of the class can often drive negotiations.  

·         Environmental disaster cases: These cases often involve numerous alleged wrongdoers who have claims against each other for contribution. A global demand may be made by the plaintiff, but negotiations with individual defendants will likely be required. The extent of insurance coverage should be disclosed.

Regardless of the status of negotiations at the end of a long mediation day, stay positive about the prospects of resolution, and be glad that much information has been gleaned during this initial session.

Post-mediation

If the case has been resolved, do not delay in preparing a formal settlement agreement. The mediator will assist if there are disagreements over the final language. If there has been a partial settlement, the results of a good faith settlement motion may drive further negotiations. If the case has not resolved, it is important for all parties to agree on next steps, which may include a deposition or sharing an expert report or a dispositive motion before reconvening for another session.

A mediator's proposal is often successful after a formal session has concluded. The mediator may make individual proposals between the plaintiff and each remaining defendant and the parties to any cross-complaints.

The path to resolution

Complex litigation should be a collaborative process between all parties. Optimism, thoughtfulness, patience, willingness to compromise and creativity often lead to a successful outcome. With the assistance of an experienced mediator or two in handling complex matters, if all goes well, you will be able to share with your client the good news that the case has been resolved.