Trending ADR Topics

By: Melissa Fuller, WAMS House Counsel

As House Counsel at WAMS, I take great pride in my affiliation with an organization that is intensely committed to providing top-quality dispute resolution services statewide while simultaneously acting as an informational and educational resource to our clients and the community for over 30 years. I have always been motivated to be of help and service to people in the midst of conflict. That motivation steered me towards a career in law and, ultimately, a focus in alternative dispute resolution. As a trial lawyer since 2001, I gained great experience in the areas of employment, personal injury, construction and complex litigation. I have had the unique opportunity to advise and advocate for a wide range of clients, including injured plaintiffs and insureds, government agencies, employees, employers, corporations and business partners. I’ve educated clients on applicable law and procedure and provided good counsel and an empathetic ear during what was an intensely stressful and challenging experience for most. Taking a cue from numerous mentors, I encouraged my litigation clients to utilize mediation with great success.

Now I have the distinct pleasure of interacting with WAMS’ clients and responding to inquiries regarding current issues and case law impacting ADR. By way of recent example, WAMS Staff Attorney Judy Mikel and I met with a long-time client to discuss a recent Division One opinion, Evans v. Mercado, et al., No. 71390-6-I (Nov. 17, 2014), and the court’s analysis of the admission of insurance limits in a case adjudicated under mandatory arbitration rules. The Evans court concluded that nothing in RCW 7.06 et seq. prevents an arbitrator from admitting evidence of insurance limits. We discussed that opinion in the context of a WAMS UM/UIM arbitration guideline that asks parties to refrain from disclosing underlying policy limits and offsets so arbitrators may determine liability and damages without exposing themselves to potentially prejudicial factors. WAMS encourages clients to bring current issues to our attention and we appreciate candid discussions of WAMS policies and guidelines.

Another topic for discussion in ADR is the use/nonuse of the joint session in commercial mediation. A traditional cornerstone of the mediation process, the joint session is used to bring participants together initially in the same room with the mediator for face-to-face discussion and negotiation. Some in the ADR community speculate that the noticeable trend to abandon the joint session is primarily driven by the opinions of lawyers and mediators that joint sessions are “a waste of time” or too risky when emotions among participants are high at the outset of mediation. Experienced mediators know, however, that when joint sessions are properly orchestrated, they can provide a sense that positions and interests have been advocated and heard by all and an opportunity for parties to express regret without admitting liability. WAMS mediator John Cooper’s view is that joint sessions also offer a useful opportunity for parties to better assess case value. For example, in a pre-suit matter or when little or no discovery has been completed in a case, the joint session allows parties to identify certain factors or nuances that might impact their respective evaluations. John points out, however, that there are risks associated with having a joint session. For example, counsel could use the opportunity to assert a damaging positional statement or argument that isolates the parties. The time it takes for emotions to cool and for the mediator to get the parties and negotiations back on track eats up valuable time. WAMS mediator Harry Goldman always offers the opportunity for a joint session to his clients and uses it to explain the process to the participants, invite their comments and allow them to see who’s in the other rooms. Harry says the current trend is a complete departure from the early days of mediation practice when joint sessions were always used. He finds joint sessions problematic when counsel use the time to advance argument and make comments of no significance to the negotiations. I fully expect the topic of joint sessions to be part of an ongoing discussion in ADR circles this year.

As usual, 2015 will find WAMS neutrals and staff offering informative materials and presentations on topics ranging from ADR basics to more specialized and current issues of interest to our clients, the legal community and the community at large. WAMS mediator Kathleen Wareham will be moderating an intriguing presentation at the American Bar Association’s 17th  Annual Section of Dispute Resolution Spring Conference, April 15 – 18, at the Westin Seattle. Kathleen’s presentation, The Effective Interview: Tips from Journalists and Storytellers for Lawyers and Mediators , will enlist a panel comprised of experienced journalists and a performance artist to share interview techniques that cross over from the discipline of journalism to law and mediation. As Kathleen explains, “Communication is an important part of any lawyer’s job. We are asked to ‘listen attentively,’ but what does that mean?” The panel will describe the skills used when interviewing a subject and how to effectively listen to identify the real issues and ask the sort of follow-up questions that get people to talk.

I am honored to act as Content Editor of Alternatives to Litigation: Arbitration and Mediation, a chapter devoted to ADR in the Washington Lawyers Practice Manual, an annual project of the King County Bar Association designed to serve as a comprehensive legal reference for lawyers statewide. Chapter content has been provided over the past 20+ years by various WAMS staff attorneys, mediator Bill Joyce, and family law attorney John Kydd. The updated publication will be available through the KCBA, with proceeds used to support local pro bono programs.

WAMS staff and panel members work hard to stay current and provide the opportunity and resources to learn about and effectively use ADR, so please take advantage of everything we have to offer.

Managing Your Mediation Costs – Time and Money

By: Diane McGaha, Attorney Director & Michele Sales, WAMS Panel Member

Many of the cases being mediated these days are referred into mediation as part of a court-ordered ADR scheduling requirement. While mediation by its very nature should be a “voluntary” process for the participants, there is little about court-mandated mediation that is voluntary, especially when it comes to the time and cost to attend. While most cases referred into mediation are resolved in a satisfactory way, too many disputes are being mediated with disappointing results for everyone. Determining whether a case is appropriate for mediation and how best to minimize the cost is the focus of this article.

First, don’t be forced into mediation by a case scheduling order if the circumstances don’t justify the expenditure of time and money. In situations where you or your opposing counsel will honestly admit that one of you is simply “checking the box”, schedule a judicial settlement conference or request a waiver of the ADR requirement. These situations might include that:

  1. the claims adjuster has already offered the company’s “bottom line” and says there is no more;
  2. your client has a principle to uphold and, despite your best efforts, will not agree to compromise;
  3. one party’s view of liability is unrealistic and counsel recognizes and admits that it will not change.

Second, if mediation seems a viable option, consider whether the case warrants a half-day session or even less time. Some mediators require full-day commitments while others accept appointments on an hourly or half-day basis. The hourly rate charged by a mediator does not necessarily correlate with her skills or experience, as some mediators choose to bill at lower rates than others for any number of reasons. Ask about discounted rates for claims below $100K or for cases involving non-profits or pro bono representation. Consider whether your case might get resolved with a mediator spending a couple of hours on the phone or in an office near you, instead of scheduling a full-day session in downtown Seattle.

The time commitment for mediation should not be underestimated, however. You can predispose mediation to failure by not allowing enough time for the process to work. If you have three claimants, each with a sizable claim and two insurance companies disputing liability, there may be insufficient time if the mediation is scheduled for four hours in a morning time slot. If the claimant has an especially emotional story to tell, as often happens in an employment or medical malpractice case, consider scheduling the mediation for a full day. The failure to schedule adequate time is a major reason why disputes are not resolved at mediation. Mediator follow-up and subsequent sessions only increase the time and expense of reaching a settlement.

Third, when scheduling mediation, don’t forget to consider the impact of pending motions for summary judgment, CR 35 exams, depositions or other important discovery activities. Scheduling a mediation to occur while a summary judgment motion is pending may be the best time to mediate a case since both sides still have risk. But the outcome of a summary judgment motion or medical exam could significantly impact the ability to settle the case, so leave enough time between that date and the mediation date to allow you to cancel the mediation without incurring a cancellation fee. Clients do not appreciate being charged for mediation services they don’t receive, especially when the cancellation fee could have been avoided by counsel with better planning.

Fourth, alert everyone who might play a part in the settlement, such as lien holders (including Medicare and prior attorneys), to make sure they’re available throughout the mediation. Don’t schedule a mediation to start in the afternoon if the adjuster is on the East Coast. Make sure your client’s flight home isn’t booked for late afternoon, which could require her to head to the airport just as negotiations enter a critical stage. Determine whether a parent or spouse or CEO must be consulted if negotiations are not where you had hoped. If the right parties are not accessible when you need them, your mediation time and money will not be spent efficiently.

Fifth, remember that most mediators charge for their time to review voluminous materials submitted by counsel. Although WAMS mediators include “reasonable” review time in their flat rate structure, there is a limit to what will be reviewed without an hourly surcharge. Bring those deposition transcripts, photographs and medical records to the mediation for access if needed, but don’t send them to the mediator unless you are willing to pay her review time. Email a case summary to the mediator (highlighting key discovery, if helpful) and take supporting records to the mediation. (On a side note, avoid using multiple formats to deliver information to the mediator: messenger, fax, mail or email – just not all four methods!)

Sixth, come ready to make the most of mediation. Prepare your client about what to expect so you can utilize the mediator’s skills and experience productively. The day of mediation is not the best time to start educating your client about claim value, liability or other problems in her case. Clients should arrive for the mediation prepared to listen with an open mind to consider various aspects and risks of their case. Think of a scheduled mediation as a “today only opportunity” for you and your client to work with a mediator – not an indefinite, open-ended process that can drag on for months. When a mediation effort extends beyond the scheduled time, it will generally produce a higher mediation expense than what was originally quoted if the mediator bills for her excess time.

Finally, respect the mediator, the parties involved and the process. If you agree to participate in mediation, prepare appropriately and come to negotiate. The mediator expects to ask tough questions and work with you in the hope of crafting a settlement, but can only do so if you’ve spent the time to prepare yourself and your clients to use the process efficiently. Leave the posturing behind and you’re much more likely to settle the case and save your clients some time and money in the process.

Case of Interest

A recent ruling by a Court of Appeals Division III panel in Breuer v. Presta (published opinion 26843-8-III) warrants consideration. It addresses the issue of what constitutes a “written, good faith request for mediation” for the purpose of tolling the statute of limitations in health care claims pursuant to RCW 7.70.110.

Supporting the Lawyer’s Complex Role in Mediation

By: Kathleen Wareham | Mediator, Arbitrator

warehamMediation offers many benefits to clients, providing them an efficient, effective means of resolving their legal disputes. One reason mediation works is that it supports the complexities of the attorney-client relationship and helps lawyers satisfy their dual duties to both advocate for and advise clients about risks and benefits of settlement. When the mediation parties and their lawyers clearly understand the lawyer’s role and duties to the client during mediation, they can work more effectively with the mediator and fully utilize the mediation process.

Washington’s Rules of Professional Conduct, revised in September 2006, provide lawyers clear direction to consider social, emotional and economic consequences of litigation, as well as alternatives to litigation such as mediation. In fact, when a legal matter “is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”1

Multiple Roles for the Lawyer

The Preamble to the RPCs describes multiple roles for a lawyer representing a client: advisor, advocate, negotiator and evaluator. These roles may seem in conflict with each other. As an “advisor,” the lawyer “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” As an “advocate,” the lawyer “conscientiously and ardently asserts the client’s position under the rules of the adversary system.” As a “negotiator,” the lawyer “seeks a result advantageous to the client but consistent with the requirements of honest dealings with others.”2

A lawyer acts in all three of these roles in mediation. In both mediation and litigation, the lawyer is helping the client by advocating and asserting the client’s position. In mediation and in settlement negotiations, the lawyer takes on the negotiator role, to seek a result advantageous to the client, and as an advisor, to explain practical implications of a client’s legal rights and obligations.

Lawyers Must Give Candid, Straightforward Advice

The RPCs specify the duties expected of lawyers in their role as advisors.

“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”3

These non-legal factors are part of the lawyer’s assessment and advice because pure legal advice, in a vacuum, fails to fully meet the client’s needs. As described in Comment 2 to Rule 2.1 “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.”

The rules encourage client need-centered guidance and “candid” advice. Comment 1 to Rule 2.1 reminds lawyers of the standards they are expected to meet and of the importance of honest, straightforward advice, even when it is difficult to give. This comment provides: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

The comments acknowledge this is not always easy. The duty to advocate and assert the client’s interests complicates the advisory role even more. By providing broad advice, including consideration of moral, economic, social and political factors, lawyers can strike the balance and fulfill the duties to clients expected by the rules — both to assert the client’s interests through advocacy and also to give honest and candid advice.

Settlement Is a Client Decision

While the lawyer works to both advocate and advise the client toward resolution of a legal dispute, under Rule 1.2(a) the lawyer must be mindful of the fact that decisions concerning the objectives of the representation, the means to pursue the objectives, and the ultimate decision regarding settlement of a legal dispute, are client decisions.

The lawyer’s role is to advise the client regarding the possible objectives of representation, the potential means to pursue the objectives and the pros and cons of particular settlement options. Fulfilling these duties to the client is a complex task. The lawyer must remember that the client is the decision maker under Rule 1.2(a), but also remember to give the client complete, broad advice pursuant to Rule 2.1.

Mediation: An Ideal Forum

Advising the client about mediation as a means of pursuing the client’s legal objectives is not only encouraged by the RPCs, it is a way for the lawyer to strike the balance between giving advice, advocating for the client and listening to the client. Mediation supports these complex communication tasks for the lawyer. A professional mediator helps the lawyer give the client advice and yet abide by the client’s decisions regarding the objectives and means of the representation and the client’s ultimate decision regarding settlement.

The RPCs provide lawyers with ethical guidance for fulfilling the complex roles of both advocating for and advising a client. More than establishing ethical duties, the rules help promote resolution of legal disputes — the ultimate purpose of litigation — by defining the lawyer’s role as both advisor and advocate.

Perhaps mediation has become the paramount method of dispute resolution not just due to economic pressures and crowded court dockets, but because it best supports the tensions in the litigation process between lawyers’ dual roles as advocates and advisors. Following the ethical guidance of the rules when considering, preparing for and participating in mediation helps lawyers fulfill their duties to their clients and effectively resolve their clients’ legal disputes.

1 Comment 5 to Rule 2.1.

2 Preamble [2].

3 Rule 2.1.

Kathleen Wareham has been a panel member of WAMS since 2004. She mediates disputes, utilizing more than 20 years of legal experience in negligence, personal injury, civil rights, wrongful death, and complex probate, guardianship and trust matters. This article draws on material from Ms. Wareham’s chapter on “Washington Mediation Ethics” that will appear in the update to the Washington Legal Ethics Deskbook (Wash. St. Bar Assoc.) scheduled for release in January 2009.