ISDLS - Authoritative Papers - Mediation: An Overview of Alternative Dispute Resolution, by Robert A. Goodin & Stephen A. Mayo

Traditional civil litigation may impose substantial costs and delay long before a trial commences. Further, the congestion of trial calendars in most courts, caused in part by a substantial criminal docket, contributes substantially to that cost and delay. In this environment, alternative processes for dispute resolution offer many advantages.

In an effort to streamline the life of a case while preserving justice, alternative dispute resolution (ADR) offers an arena for litigation outside of the traditional trial process. Within the chosen forum, each ADR mechanism provides a third-party neutral (private lawyer, mediator, judge(s)) to meet with both parties early in the life of the case in an effort to reduce any delay and expenditure on potentially unnecessary litigation. Following are descriptions of six such dispute resolution processes:

1. CASE MANAGEMENT

Case management is a judicial process which increases judicial control over (i) the identification of substantive issues, (ii) the exploration of utilizing ADR, and (iii) the time required to complete the procedural steps of a civil litigation. By streamlining the disputed issues and disciplining the procedural calendar, these processes curb the use of delay as a strategy in civil litigation.

At the commencement of the proceedings, the counsel are required to issue a joint written statement to the court of the results of the meeting. Following this submission, the court holds a case management conference, in which the court and the parties focus on the issues, and the court establishes a procedural plan and calendar for the case. In this way, the case management session helps to structure the pretrial proceedings of a case to compel the parties to exchange additional information of key issues as early as possible. By structuring the case in this manner, the case management process facilitates and promotes earlier settlements. For those cases where no such settlement is reached, the effective use of case management techniques enables the court to eliminate frivolous issues and streamline the case so that it may proceed to trial as efficiently and cost-effectively as possible.

2. EARLY NEUTRAL EVALUATION

Early neutral evaluation (ENE) is a technique used to provide early focus to complex commercial litigation. The central goal of ENE is to get the central participants in the litigation—that is the decision-makers on behalf of the clients and their principal trial lawyers—intensively involved in the legal and factual merits of the case in the very beginning of the litigation.

ENE is conducted by a senior lawyer with expertise and experience in a particular subject matter. In this process, the parties convene in the office of the early neutral evaluator (the “neutral”), who evaluates each side of the case. Following a joint session and private caucuses, the neutral prepares an outline of the issues and an informed evaluation of the potential outcome of the case, which is then communicated to the parties either jointly or (more frequently) separately. If appropriate, the neutral conducts consensual mediation of the dispute in an effort to pursue settlement discussions. If settlement is not reachable, the neutral then discusses case management and assists the parties in reaching agreement on a procedural plan for the case. All communications, except those expressly agreed to in the case management plan, are confidential. This process results in the parties gaining a better understanding of their respective positions and the likely outcome if they proceed with litigation. Nearly one-third of the cases filed in federal court are resolved during the ENE stage.

3. JUDICIAL SETTLEMENT

Judicial settlement requires the involvement of a judge (not assigned to adjudicate the dispute in question) in aiding both parties to settle a civil case. The success of this process is attributable both to the advantage of utilizing judicial experience in evaluating the settlement value of a civil claim and to the separation of private and confidential settlement negotiations from public adjudicatory functions.

The settlement conference may be held at any time during the life of a civil case upon request of a party or recommendation of the trial judge. The settlement judge acts as a mediator or facilitator at the settlement conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case, and suggesting settlement options. The settlement judge does not have the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.

4. MEDIATION

Mediation involves the use of a facilitator trained in conflict resolution. Mediation is consensual, confidential and non-binding. It encourages the parties to discuss their positions with greater candor and fosters compromise. Mediation involves a meeting at any time during the lawsuit between the parties, their legal representatives and a neutral, third party (whether former judge or attorney). As in early neutral evaluation, the lawyers prepare the legal authorities and factual evidence in support of their clients’ positions prior to the session. The mediator often allows the parties to voice their position in a joint session before meeting privately to discuss settlement opportunities. Frequently, the mediator will share with each party an informed prediction of the outcome of the litigation, assuming it were to proceed. All communications are confidential.

5. ARBITRATION

Arbitration is a process by which a dispute between two or more parties is submitted to a panel of impartial third parties for resolution on the merits based on the evidence presented at a hearing. Arbitrators are professional and business people who are selected by the court to assist in the informal resolution of disputes because of their knowledge, expertise and reputation for fairness and impartiality. Arbitration can be neither binding or non-binding.

6. SUMMARY JUDGMENT

The American system has a procedure known as a motion for summary judgment, through which, in appropriate cases, either party may obtain a final and complete resolution of a lawsuit without incurring the often considerable delay and expense of a full trial. Summary judgment exists, therefore, to prevent the misuse of the legal system for uncontested factual claims.