…that since its establishment in 1981, WAMS has provided pro bono mediation services to clients represented by pro bono attorneys? Over the years, WAMS mediators have volunteered their time to resolve cases involving churches and other non-profit organizations, indigent clients with civil rights claims, criminal plea bargains with victim compensation and small business disputes – just to name a few. WAMS mediators also mediate on a pro bono basis for clients referred through the Volunteer Attorneys for Persons with Aids (VAPWA) and Neighborhood Legal Clinics (NLC) programs.
“Too often, when a lawsuit is settled as a result of mediation, the efforts of the mediator go unrecognized. I do not want that to happen in the above captioned matter, because, in my view, our mediator, Bill Joyce, went above and beyond the call of duty while guiding the parties to a settlement. Bill demonstrated both great mediation skills and tenacity during an all-day mediation, but, more importantly, after the close of formal mediation and despite his own busy work and travel schedule, he made himself available to the parties on a moment’s notice and thus kept the process going until the case settled.”
Refusal to Make Offer at Mediation Not Bad Faith
Plaintiffs sought sanctions against defendant for refusing to make any offer in mediation while its motion for summary judgment was pending, arguing that defendant should have provided notice that the mediation would be futile. The court denied sanctions, noting that defendant had sent an out-of-state representative to the mediation with full settlement authority, so there was no bad faith. Defendant was helped by the facts that plaintiffs were also mediating an underlying state case with another party in the same mediation, so it was not a wasted process, and that defendant prevailed on its motion for summary judgment. The court noted in passing that what transpired in the mediation was not supposed to be revealed under the confidentiality agreement signed by the parties.
Kline v. State Farm Fire and Casualty Co. , No. 12-CV-00955WJ/RHS (U.S.D.C. D.N.M., April 19, 2013)
Source: Keith Seat’s Mediation News for the 21st Century
Medicare Lien Issues
Check out a May 2013 New Jersey court ruling of interest to anyone who deals with Medicare lien issues, as a mediated settlement was enforced notwithstanding the “no review” status of a proposed Medicare set-aside.
DuHamell v. Renal Care Group East, Inc., et al. and Catherine Ney v. Renal Care Group East, Inc., et al ., 2012 N.J. Super. LEXIS 201 (decided December 7, 2012, and released for publication May 16, 2013),
By: Judy Mikel, WAMS Senior Attorney
Under the Local Rules of practice for civil proceedings before the United States District Court for the Western District of Washington, LCR 39.1 addresses Alternative Dispute Resolution. A number of WAMS panel members are on the court’s register of attorney neutrals. Interesting changes were made to LCR 39.1 in late 2012, including the following:
Participation in ADR is no longer mandatory. The court may order participation, but it is otherwise voluntary. LCR 39.1(a). The register of attorney neutrals now requires that the neutral have a physical office within the geographic boundaries of the Western District of Washington. LCR 39.1(b).
LCR 39.1 now includes a process for parties to request a pro bono mediator and requires mediators on the court’s register to accept at least one pro bono appointment per year, if requested to do so, or risk removal from the register. LCR 39.1(b). Also, if the parties do not agree on a mediator from the court’s register, they may select any mediator they wish and adopt their own process. LCR 39.1(c).
Rule 39.1 previously required a conference call to be set up by plaintiff between mediator and counsel. The revised rule now indicates the mediator ‘may’ arrange an initial conference call. LCR 39.1(c).
Although not defined, the rule now requires good faith participation. LCR 39.1(c).
This rule was last revised in 2009. The change from mandatory to voluntary is significant and attorneys practicing in federal court will likely take advantage of the pro bono obligation.
WAMS Certified 39.1 Mediators
Monte Bersante John Cooper
Michelle Corsi Pat Duffy
Cliff Freed Harry Goldman
Tom Harris Scott Holte
Bill Joyce Margo Keller
Don Kelley Larry Levy
Cynthia Morgan Michele Sales
By: Alisa Sullivan, WAMS ADR Program Director
Washington Arbitration & Mediation Service has administered the Washington State New Motor Vehicle Arbitration Board (Lemon Law) since its inception in 1988. Designated under statute to settle new vehicle disputes between consumers and manufacturers, the Arbitration Board is an independent, neutral agency that conducts arbitration proceedings as a prerequisite to court. Washington is one of a handful of states with a designated Arbitration Board, as others require the consumer to utilize the manufacturer’s arbitration program prior to filing in court.
In its twenty-five year history, the Lemon Law program has received over 6,025 requests for arbitration from consumers looking to have their vehicles repurchased or replaced by the manufacturer. Of those requests, 2,210 cases have resulted in an arbitration hearing, 1,894 have settled with the manufacturer prior to hearing, and 686 requests have been withdrawn by the consumer. It is estimated that the Lemon Law program has resulted in settlements or awards worth about $104,537,440.
Kudos to the dedicated neutrals who have made the Washington State program a successful, impartial process.
By: Diane McGaha, WAMS Attorney Director
The well-known title above from one of Aesop’s Fables (The Ass and His Purchaser ) comes to mind when describing the newest members of the WAMS panel of professional neutrals.
Monte Bersante was a cardiopulmonary technologist before obtaining his law degree and joining the Davies Pearson firm in Tacoma. Monte had several excellent mentors at Davies Pearson, including Larry Levy. Monte was aware of Larry’s progression from litigator to mediator, so it’s no surprise that he chose to affiliate with WAMS as a neutral. According to Monte, “Having performed as an advocate on behalf of both plaintiffs and defendants over the past 20 plus years, it became a natural transition and desire for me to enter the role as mediator where I could assist parties in finding their mutual interests to resolve their disputes.” WAMS is honored to have Monte join the company of neutrals at WAMS, where he will be mediating and arbitrating throughout the Puget Sound region.
Michelle Corsi has spent her career as a litigator with the Lee Smart firm in Seattle, handling commercial matters for plaintiffs and defendants. Michelle’s interest in ADR has evolved over the years from that of advocate to neutral, as she explains: “Approaching twenty years in practice, I have accepted an invitation to join the WAMS panel to expand my practice by using my extensive litigation experience to mediate and otherwise facilitate the voluntary resolution of disputes. The WAMS panel has always exemplified a judicious commitment to resolution of legal disputes whether in arbitration or mediation. I look forward to maintaining that tradition.” There’s no question that Michelle will be an asset to the WAMS panel, particularly in Snohomish, Whatcom and King counties.
Brad Maxa has a litigation practice with Gordon Thomas Honeywell in Tacoma that emphasizes insurance coverage matters. As a result, Brad has spent a lot of time as an advocate for one party of many involved in multiple-party CD and serious personal injury disputes. Partially because of his repeated involvement in mediation of such cases by Bill Joyce and Tom Harris, Brad developed an interest in becoming a neutral. According to Brad, “As I looked to expand my mediation and arbitration practice, I wanted to be associated with the very best. I did not even consider going with any group other than WAMS.” WAMS is very pleased that Brad chose to join the club at WAMS and make himself available to mediate in Pierce and Thurston counties.
Jack Follis became a litigator at Anderson Hunter in Everett while Scott Holte was a member of the firm, so it’s only natural that Scott advocated for Jack to become a neutral with WAMS. Since Jack had been a WAMS client over the years, the decision to have him join the WAMS panel was logical for WAMS and for Jack. In Jack’s words, “You are known by the company you keep. That is why I have chosen to be a mediator with WAMS. Being part of such a diverse group of skilled professionals will help me to keep improving my skills.” WAMS is excited to add Jack Follis to its panel as another neutral available to clients in need of dispute resolution services in Snohomish and Whatcom counties.
The addition of Monte, Michelle, Brad and Jack to the WAMS panel in 2013 will expand the dispute resolution options available to our clients. We welcome them and hope our clients will find an opportunity to do the same in the very near future.
“Thank you so much for your help mediating yesterday’s case. This is the second difficult case that you have successfully mediated for me. Honestly, I did not think we would settle yesterday’s case. However, your skill, expertise, and patience carried the day. As a younger attorney who does not have a lot of personal injury experience, it is great knowing that you are available to help settle matters. You are an invaluable resource. I will definitely be asking for your services as a mediator in the future.” ~WAMS Client
Can you guess which mediators are in the 5,000+ Club at WAMS? Only Harry Goldman and Larry Levy have mediated at least 5,000 cases during their careers. Both are still very busy and likely to be seen most days at WAMS, so please be sure to congratulate them when you next cross paths. It’s quite an accomplishment!
By: Penny Gans, WAMS Staff
John Cooper, a senior member of the WAMS mediation and arbitration panel, is best described by these words of a frequent WAMS client: “John Cooper is a ‘closer’. He evaluates cases well…gets to the point in negotiations and when he feels that a settlement can be had, he closes the case. If the parties are negotiable, John always gets it done.”
During his distinguished career, John has worn many hats. Not only has he been a member of the WAMS mediator panel since 1989, but he has also been a Washington State Court of Appeals law clerk, law firm partner, solo and swing arbitrator, private judge, seminar presenter and author. He has also earned high honors on the golf course and in the kitchen.
John grew up in Seattle and the San Francisco Bay area. He started college at Whitman and transferred to UC-Santa Barbara to take advantage of the very low in-state tuition while he worked his way toward a degree in Economics with high honors. He returned to Seattle and earned his law degree at the UW and spent a year clerking for the Honorable Jerome Farris at the Washington State Court of Appeals. He then joined the Seattle law firm that subsequently became Stafford Frey Cooper. As a practicing attorney, John represented plaintiffs and defendants in a wide range of cases, including negligence and product liability, insurance coverage, commercial, maritime, fidelity and surety law. Because of his experience on both sides of the legal fence, he is often asked to be the neutral or “swing” member of an arbitration panel. In 1989, John represented a client in a WAMS mediation and was subsequently invited to a mediation training session. After joining the WAMS mediation and arbitration panel, his activities as a WAMS neutral soon accounted for nearly 70% of his practice. John changed his relationship with his law firm to “Of Counsel” and became a full-time WAMS mediator/arbitrator.
John’s continued success is based on thorough preparation and his ability to listen carefully to all parties and let them know that he understands their positions. He particularly enjoys the psychology of mediation: reading the participants and “reframing” and delivering messages between them so that progress in the negotiations can continue. John welcomes challenging medical negligence and employment cases because of the interesting legal issues and high caliber of counsel. He thrives on hearing that “You’ll have your work cut out for you on this one!”. As a former trial lawyer, he feels strongly that a successful mediation can be especially therapeutic for the plaintiff, ending the necessity of reliving an unpleasant experience many times to attorneys, doctors and a jury. In John’s words, “I doubt any trial lawyer has ever had a client describe the trial experience as ‘a lot of fun’”. His goal is for all parties to be able to look back at the results of the chosen resolution process and say “that was a good thing.”
Away from WAMS, John and his wife Barbara enjoy traveling to Palm Springs and Hawaii in the winter, as well as taking trips with their eleven-year-old grandson Zach (who has accompanied them to Italy and the East Coast). John’s golf handicap is in the lower double digits, so when the WAMS calendar shows him as “N/A”, it likely means he’s on a golf course somewhere warm (although he also has an annual January golf outing at Bandon Dunes in Oregon.)
To recuperate from the stresses of work and golf, John enjoys spending time in his Bainbridge Island garden and creating delicious meals with his harvest and other local delicacies. A quick and tasty recipe ala John Cooper: Sauté a bit of diced pancetta and finely chopped shallots briefly in olive oil, then add bay scallops for 2-3 minutes; remove, reduce the pan juices with a bit of white wine, and serve with John’s garlic rosemary foccacia bread (recipe provided elsewhere in the newsletter).
John Cooper is truly a multi-faceted man for all seasons and cases and a highly valued asset to WAMS and our clients.
By: Diane McGaha | Attorney Director
& Tamara Roberts | Mediation Director
WAMS Case Administrators are often asked by prospective clients and new staff members to distinguish one mediator’s “style” from another – and it has nothing to do with anyone’s choice of tie, watch or footwear. Particularly when a client is unfamiliar with one or more mediators under consideration, it can be helpful to know which mediator style might work best for a particular client or case.
It’s fairly well agreed within the “old school” ADR community that there are three main style categories used to describe how mediators may approach a given case: facilitative, evaluative and transformative. Of course, it’s important to understand from the outset that an experienced and well-trained mediator can’t be categorized by any single, universal definition. But it’s also undeniable that the dynamics of each case can be greatly influenced by the style employed by a mediator in his/her approach to resolution, whether by choice or direction. If a specific style/approach is specifically needed or requested by the parties to a prospective mediation, it’s helpful to share that request with the WAMS Case Administrator at the time of scheduling.
The first mediator style category is facilitative, which is generally regarded as the most common and traditional style of mediating. A facilitative mediator helps parties explore options for settlement by listening to all sides and helping them analyze the issues involved. The facilitative mediator does not typically offer specific settlement recommendations or voice an opinion about possible outcomes. He does, however, facilitate resolution by helping the parties come to an agreement based on information exchanges and compromise. When asked about mediators within WAMS who might be considered to be facilitative in their approaches to any given case, the usual WAMS response is that most mediators are trained to be facilitative. It’s the basic training model used by WAMS and most mediation training organizations for many years.
An evaluative mediator is generally known and expected to offer opinions and make specific recommendations about settlement values and outcomes should the case go to trial. The evaluative mediator is often retained precisely because the parties want an outside, neutral opinion about various aspects of a case that are pivotal and hotly contested. While both the evaluative and facilitative mediator will point out the strengths and weaknesses of the case to help parties understand the costs and risks of going to trial, the evaluative mediator will be much more directive and opinionated in her approach. Most retired judges who work as mediators are evaluative in style, as the authoritative judicial role is not easily
left behind. Obviously, there is an inherent risk that the evaluative mediator will express an opinion that isn’t received well by one or more mediation participants, even if the mediator is specifically asked and expected to opine. As soon as an evaluative mediator expresses an opinion, the risk is that the mediation will be ended by a party who doesn’t like the opinion. The use of an evaluative mediator should be by specific request, with a clear understanding by all involved of the expectations and obligations of the mediator and parties to be involved in an evaluative mediation. Some mediators are more comfortable with the evaluative mediation style than others, so be sure to convey any request for an evaluative mediator to the WAMS Case Administrator at the start of the mediator selection process – avoid asking the mediator during the mediation to be evaluative, as he may decline if not forewarned.
The last category of mediator style is transformative, wherein the objective is to transform the relationships between the parties through improved communication and guided interaction. The transformative mediator helps parties appreciate each other’s viewpoints and works to empower them to deal with future conflict in a healthier, more productive manner. Transformative mediators tend to handle many cases involving relationships between the parties beyond the dispute(s) at issue. Whether the relationships pertain to a family-owned business, partnership or organizational conflict, the transformative mediator lets the parties control the process. With guidance throughout to help each party see the other’s perspective and establish a framework for future conflict avoidance, transformative mediation goes beyond the objective of ending a specific conflict to bring some semblance of reconciliation to the relationships involved.
The reality is that WAMS mediators have been extensively trained to employ all three mediation styles when the case calls for creativity and adaptability. No WAMS mediator is interested in being typecast with a particular style that might preclude her consideration for a case. It is, however, undeniable that there are stylistic differences between mediators that can assist in the neutral selection process. At the end of the day, WAMS strives to match the mediator to the case in order to maximize the opportunity of settlement. In one recent case, the plaintiff related well to Tom Harris because of their shared interest in eclectic watches. In another case, Margo Keller’s golfing hobby landed her an appointment to mediate for an unknown client. The reality is that choosing a mediator is certainly not an exact science – but knowing more about mediator styles and what might best suit a particular client or case can only be beneficial. One size definitely does not fit all!