Making Mediation in Federal Court Work for Your Client
| Publication year | 2018 |
| Pages | 61 |
| Citation | Vol. 87 No. 8 Pg. 61 |
The Winner Takes it All: Making Mediation in Federal Court Work For Your Client[1]
by Diane Sorensen
When I began practicing law thirty years ago, there were no cell phones and no internet, research was done in the library with books, and lawsuits mostly went to trial. When I clerked for Judge Patrick F. Kelly of the U.S. District Court for the District of Kansas from 1986 to 1988, he had just begun to utilize mediated "settlement conferences." He hand-selected local trial attorneys (including a young Dennis Gillen) to serve as mediators for these conferences. The concept of mediated settlement conferences as a means of alternative dispute resolution was being used in other courts across the nation at the time, but was relatively new to Kansas.
Today we do our legal research almost entirely online, we have smart phones, and mediation is a regular part of the practice of law, causing the majority of cases to settle out of court. Judge Kelly was at the start of an emerging trend. In 1988, Congress enacted 28 U.S.C. § 652, which requires district courts to enact rules requiring the consideration of alternative dispute resolution in all civil cases.
The District of Kansas enacted Local Rule 16.3—"Alternative Dispute Resolution"—in 1995. Rule 16.3(c) addresses the referral of cases to mediation, and sets forth the rules of mediation. Rule 16.3(d) states that the court "will maintain a list of mediators" who meet the qualifications set forth in the Rule. That list is available on the court’s website.[2] The federal magistrate judges in Kansas strongly encourage—and often require—the use of mediation in civil cases.
The Model Standards of Conduct for Mediators has been adopted by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution.[3] While these standards are only that—standards—they are an influential source of the ethical considerations for mediators in all types of litigation.
Why Mediation Works
Nearly 90 to 95 percent of cases that go to mediation settle. While there are a variety of reasons why this process is so effective, the biggest reason is that the process is based on the principle of self-determination. Through the facilitation of a trained and neutral mediator, parties retain the power to resolve (or decline to resolve) their own dispute. Parties in litigation are keenly aware that—if the case goes to trial—the winner will most likely "take it all" and the loser could—in some cases, such as employment cases—end up paying the winning party's attorney fees.
Plaintiffs know that they will be judged by a jury over which they will have no control, or that their case may be ended by a judge's pen granting a motion for summary judgment. Defendants likewise know the risks that could befall them, and the amount they will pay in attorney fees in their quest to be the winner. When parties are asked to truly focus on these risks and benefits—and their chance at achieving them—they often determine that the best thing they can do is settle their case. It is this self-determination, this ability to decide one's own fate, which makes mediation such a successful tool.
In federal court, mediation may be (and usually is) required by the court. The current Kansas form for the Report of Parties' Planning Conference contains a provision for agreeing on the timing of an agreed ADR report, and the use of an ADR report form to be filed within 14 days after the ADR process is held. The Scheduling Order form contains a default statement on mediation being "ordered," although this order can be changed by the magistrate judge at the scheduling conference if the attorneys have reasons to support their contention that mediation will not be a good use of time. The forms are available on the court's website.[4]
In any given case, there may be only one opportunity to participate in mediation. To make this day of mediation as successful as it can be, understanding the opportunity that mediation presents and adequate preparation of your case and your client are imperative. The following are the keys to having a successful mediation.
Choose the Right Mediator for Your Case
Federal magistrate judges may, in certain cases, agree to mediate. Typically, however, the parties must hire a private attorney-mediator. The list of federally approved mediators is a good place to begin in selecting a mediator.[5]
When selecting the mediator for your case, give thought to who your client will respect, and who will make your client feel heard and understood. Trust is a fundamental part of an effective mediation. Ask your colleagues for recommendations, and then study the background and training of the mediator. Mediators will not mind if you call and interview them to determine their approach and experience with the area of law in question. The mediator's style can be an important consideration. Is this a mediator who will offer opinions on the merits of legal arguments, or is it one who will simply remain neutral and just convey information?
An effective mediator should possess these skills: a good sense of humor; empathy, intuition and creative thinking skills; sincerity...
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