When, how and who
Peter Blake
The increased use of Alternative Dispute Resolution has led to new considerations for all practitioners regarding, at the very least, when and what type of ADR methods to employ in any given case. Among other things to be considered are the type of ADR process, the timing of when ADR is appropriate and the selection of an ADR professional.
Michigan Courts and the attorneys practicing in them have recognized the value of a host of ADR processes that have resulted in the resolution of cases without the time, expense and other associated costs of a trial. Court-Ordered case evaluation, although designed to help the parties reach a successful resolution, seems to have outlived its usefulness. In its place the Courts and practicing attorneys have turned to classical mediation as a more effective vehicle to settle cases. The mediation process allows the parties to maintain control over the process and the outcome. The comfort level for the parties is also increased due to the fact that the litigants know that they can be open during their discussions about the strengths and weaknesses of their case because everything discussed with the mediator is confidential. This also allows the parties to be more creative when considering alternative resolutions which often include more than just a simple payment of money.
Another ADR process gaining popularity is mediation/arbitration. This allows the parties to engage in a classical mediation, but if the case is not settled, then the parties agree to submit the case to binding arbitration by either the same mediator or a new ADR professional. This ADR process has found favor with litigants who have entered into high/low agreements as a result of mediation, but have been unable to narrow their differences to the point where the case has resolved. The arbitration feature allows the parties to submit their case in a condensed version to the arbitrator who issues a binding decision often with the high/low end of the spectrum controlled by the parties.
A mediation/case evaluation process is another useful tool to the parties. This process differs from the classical mediation/arbitration because the mediator becomes a case evaluator and submits a "case evaluation number" to the parties for their acceptance or rejection when the parties are unable to settle the case. The mediation/case evaluation process is often successful because the mediator knows or has a very good idea of what each party is willing to do to settle the case but has been unable to get them to that point because of a number of known and unknown reasons.
A new ADR process that is gaining traction in Michigan is the summary jury trial. This often involves an agreement to limit the jury trial to a single day with binding results. It also usually entails an agreement to make the summary jury trial verdict binding with the parties waiving their right to appeal.
Another non-traditional ADR process is the "expert hearing" after relevant financial or other documents have been exchanged. During this process, the parties' experts analyze the relevant documents and reports and exchange expert opinions that can then be used to streamline discovery or help the parties assess the relative merits and weaknesses of each other's experts. Sometimes a process known as "early neutral evaluation" can be employed at that point to get help from an agreed upon neutral expert as to the strengths and weaknesses of each parties' position and expert opinions.
The timing of when to submit any particular case to ADR can vary from before litigation is filed until shortly before a case is called for trial. Many Courts are now exploring early ADR at the first Status Conference after a case is filed. An early intervention conference can be used by the Court to help the parties limit the focus of discovery and allow the parties to identify critical issues that need to be addressed during the discovery process before a case can be considered for one of the various ADR processes.
The parties also have the right to determine when private mediation is most beneficial. Sometimes early mediation makes sense when the facts of the case are fairly well known without extensive discovery and the only issue is the value of the case. Other times, mediation is more appropriate after the close of discovery, but before case evaluation so that the parties are not influenced by one way or another by a case evaluation number. This helps prevents one side of the other from "marrying" a case evaluation number that becomes problematic when the parties attempt to mediate the case after case evaluation.
Another consideration is the selection of the ADR professional for each case. Practical consideration should include, but not be limited to the client's prior experiences with the ADR professional and/or an opponent's experience or lack thereof. In some cases, mediator selection is more important to one side than the other. For instance, there is a long held belief by many personal-injury practitioners that the selection of the mediator is more important to the Defendants' insurance representative than it is to the personal-injury Plaintiff. The reasons for this seem to be the lack of experience with most personal-injury Plaintiffs with the ADR process and the mediator selection and the vast experiences of many insurance representatives and claims adjusters. Often a particular mediator has had good experience settling cases involving the same insurance representative or adjuster, while in other cases, there are certain ADR professionals who are disfavored by some members of the defense industry.
With the evolution of ADR and the proliferation of ADR processes, the decision on what process to use, when to use that process and the selection of a neutral has become more nuanced and important. Rather than simply relying upon traditional case evaluation or waiting until the court mandates mediation at the close of discovery, counsel are being increasingly far more strategic in making decisions on what processes to use, when to initiate the process and who will be the neutral.
Peter Blake is a shareholder with Blake, Kirchner, Symonds, Larson, Kennedy, & Smith PC in Detroit. He is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/), the International Association of Defense Counsel, Michigan Defense Trial Counsel, and on the list of approved mediators with Wayne, Oakland, and Macomb County Circuit Courts.
Published: Mon, Jun 29, 2015
