TIPS TO IMPROVE CHANCES FOR SUCCESS AT ARBITRATION/MEDIATION PROCEEDINGS
An interview conducted by
Daniel E. Cummins, Esquire
With the ever-present backlog of trial calendars in the trial courts across Pennsylvania, more and more litigants are turning to alternative dispute resolution in the form of non-binding mediation or binding arbitration to bring their cases to a resolution. Of course, the uncertainty attendant with jury trials has also always been a great motivator for parties to move their cases into a mediation or a binding arbitration with confidential high/low parameters in place.
There is no better way to learn about what works and what doesn’t work during ADR proceedings than by asking questions of mediators/arbitrators that have presided over numerous ADR proceedings.
The following questions, seeking tips on how parties may improve their chances for success in ADR proceedings, were submitted for a response to noted attorney mediators/arbitrators, Richard Fine, James A. Gibbons, Tom Helbig, and Lucille Marsh.
1. WHAT TIPS WOULD YOU OFFER IN TERMS OF IMPROVING THE WRITTEN MEMORANDUM SUBMITTED FOR AN ARBITRATION/MEDIATION?
The written memorandum should be a simple, convincing presentation of the party's position; it should anticipate the opposing party's arguments on liability (in arbitrations) and damages, and should set forth clear responses to those arguments. Concentrate on the points that will put pressure on the opposing party.
If relying on case law, it should be summarized as well, but copies of relevant decisions should be provided with the memorandum. Don't expect your arbitrator or mediator to go to the books to find the cases you cite.
A brief description of any settlement negotiations that occurred between the parties prior to mediation should be included.
If setting forth a settlement figure, or range of figures, be sure to give the basis for arriving at that figure. Explain how you calculated your values. Include proof of any liens that must be satisfied, etc.
Consideration should be given to whether the memorandum is to be shared with the opposing party, or whether some or all of it should be for the mediator's eyes only.
Try to not parrot the medical records, especially if you are submitting the records too. Pay attention to your strengths, but don't ignore your weaknesses. Outline your settlement position and provide a rationale for your figures.
For Arbitration – Make certain to address all the relevant facts and legal principles that support your position. My preference is for counsel to err on the side of providing too much information in the Memorandum. Remember the Arbitrator will generally review the written submissions both before and after the Hearing, and a well written Memorandum is another opportunity to persuade the Arbitrator.
For Mediation – An exhaustive Memorandum is not necessary since there will be more discussion of the case facts and issues during the Conference. Since settlement is the ultimate goal, however, it is important to provide to the Mediator your settlement position and outline the specific reasons supporting your present position.
A concise Mediation Memorandum setting forth the essential facts of the case, damages and any issues, pro or con, to liability or damages is very helpful. Eliminate puffing and the superfluous. If case is complex, a chronology/summary of events, i.e. medical treatment, is useful to the Mediator as a negotiating tool. Give the Mediator information which can be used to leverage with the other side. In Arbitration, where counsel must convince the Arbitrator of the merits, including all relevant facts, case law or argument supporting a claim or defense is highly effective in my opinion. Avoid arguing a position not supportable by the facts and law. Remember - a Mediator only facilitates a settlement whereas an Arbitrator must be influenced to decide the case in a party's favor.
2. WHAT TIPS WOULD YOU OFFER IN TERMS OF THE EXHIBITS TO BE SUBMITTED FOR AN ARBITRATION/MEDIATION?
The less paper you ask the mediator to look through, the better.
If you have already had an expert review medical records, or someone in your office has prepared a digest, summary or chronological chart of treatment, use that as your exhibit. If you feel that certain medical records are important for the arbitrator or mediator to see, tab or highlight the relevant portion.
If deposition testimony is being submitted, I prefer to have the entire transcript, but again relevant portions should be tabbed and highlighted for quick access.
Photographs should be clear and labeled on the back, preferably 5 X 7 or larger. Include the date each was taken. Don't present 5 or 6 when 1 or 2 will do the job.
At the proceeding itself, consider a well-thought-out Power Point presentation for your exhibits.
Highlighting helps attract attention; I have no problem with it. Don't submit unnecessary medical records. Submit the records that speak to the injuries at issue. If you're going to submit depo testimony, submit the entire transcript. I'd suggest in that instance, communication with
opposing counsel beforehand can avoid duplicate submissions.
Make sure to reach an agreement with opposing counsel on the proposed exhibits before submitting them to the Arbitrator or Mediator. A recurring problem has been the submission of updated medical records and reports without providing them to opposing counsel, or documents obtaining objectionable hearsay statements, such as police reports, without a stipulation as to admission from opposing counsel. Submission of all medical records is unnecessary (e. g. every PT or primary care physician’s note); however, a complete medical chronology is helpful, especially for a comparison of an individual’s pre and post-accident medical condition.
In Mediation, since I do not need to be convinced of the merits of any party's position, only relevant and pertinent medical records, photos and portions of depositions need be supplied. Do not overwhelm the Mediator with paperwork. A short and concise summary of medical treatment is in my opinion far more effective than a stack of medical records. On the defense side I generally like to have a copy of any IME reports which I can compare to the Plaintiff's concise summary. On the other hand, in arbitration counsel needs to convince the fact finder that his/her position is the more correct one and all supportive, relevant medical reports, documents, photographs or statements should be utilized. In complex or catastrophic cases, a day in the life video or other visual aid illustrating how the accident occurred or product was defective is very effective.
3. IN ARBITRATIONS, WHAT IS YOUR POSITION ON THE VALUE OF CLOSING ARGUMENTS BY COUNSEL?
I welcome closing arguments and would always give parties the option, but never make them mandatory. Attorneys should remember their audience; the arbitrator does not need or want courtroom dramatics-- don't "hype" your case.
Be careful not to argue points that are clearly not supported by the evidence; sum up your case as succinctly as possible,
I welcome closing arguments in arbitrations, but counsel need to remember that the panel is not composed of lay people. Less theatrics have a bigger impact. I do not see any need for openings or closings in mediations.
Absolute necessity and rarely, if ever, should be waived by counsel. Need not be lengthy or theatrical; rather I prefer counsel to elicit a concise summary of the credible evidence supporting his or her theory of the case and why the Arbitrator should decide in their favor on a particular issue (e. g. liability, damages, coverage).
Counsel should always be given the opportunity to make a closing argument. However, depending upon the complexity of the matter, a closing argument may or may not be of any value. If there is a legal issue, a closing argument should reference case law and facts which support the party’s position. Address any evidence that came up during the hearing that was not addressed or anticipated in the submitted Memorandum. Avoid arguing anything unsupported by the evidence as that will only adversely impact your credibility. Avoid arguing the obvious. Highlight the evidence that supports your position and/or nullifies your opponent’s position.
4. ANY TIPS ON HOW COUNSEL MAY BETTER PREPARE THEIR CLIENT AND/OR CLAIMS REPRESENTATIVE FOR PARTICIPATION IN ADR PROCEEDINGS?
Plaintiff's counsel should make certain that the client understands the purpose of the proceeding. Unrealistic expectations can derail a mediation. The client should be fully briefed ahead of time as to the nature and significance of any subrogation liens, Medicare or Welfare liens, and costs that need to be reimbursed from the proceeds of an award or settlement.
Claims representatives must understand that without full authority to settle, a mediation cannot succeed. Ideally, the individual with authority should be present in person. This helps to streamline the negotiating process, avoiding the need for repeated calls "to the company". Furthermore, the opportunity to meet the Plaintiff will allow the claims rep to assess how a jury might react to the individual.
If there is more than one defendant, discussions should be held with the claims representative in advance of the ADR proceeding as to how a settlement package might be put together---by what percentage or other method the ultimate pay-out should be split between them.
In mediations, counsel need to emphasize to their clients/adjusters that the tone is one of compromise. Parties must understand that there is a distinct possibility that what they want to pay/receive may not be what they will end up paying/receiving. Parties need to understand that the numbers at the beginning of the process will not be the numbers at the end of the process. Counsel also need to counsel patience. It is a process, and insisting on getting to the end at the beginning is counter-productive. It's not going to be over in an hour or two.
For Mediation, it is important for the parties and claims representatives to clearly understand the Mediation process and its ultimate purpose, i. e., there must be a sincere desire to resolve the claim and not necessarily prove the other party is wrong. Must understand the Mediator is a facilitator and not a fact-finder; thus, if the parties and/or claims representatives are unwilling to fully discuss the case issues and potentially re-examine their positions, then Mediation should probably not be pursued.
Impress upon your client/representative the importance of the ADR. Point out the pros and cons of your case so that the client/representative enters the ADR fully aware of the uncertainties. Have your client assess both best case scenario and worst case scenario in discussing settlement range and settlement needs. Discuss in advance a realistic range of settlement you’re willing to consider. Be flexible. Make sure that your client/representative has the desire and willingness to participate in ADR - otherwise you are wasting your time and money.
5. DO YOU HAVE ANY MISCELLANEOUS TIPS FOR COUNSEL TO IMPROVE THEIR CHANCE FOR SUCCESS AT AN ADR PROCEEDING?
Simplify and organize!
Know your facts, know the applicable law, and whenever possible, know your mediator or arbitrator. Take his or her style and personality into account when presenting your case.
Remember the Boy Scout motto, and be prepared.
Obviously, having a claim rep in the room is ideal. Second best is having them available by phone. Come with authority. If you've had preliminary discussions prior to the mediation, don't raise the demand/lower the offer at the mediation.
Defense counsel: try and bring a proposed release with you to speed up the process of payment.
Plaintiffs' counsel: have a good handle on your costs to date; your client will likely ask how much goes into his/her pocket at the mediation. That can be a big help. If there is a lien, initiate contact with the lienholder prior to the mediation and try to get a conversation going about compromising the lien.
PLAINTIFF - Don’t necessarily rely upon your client as the only witness to be called at the hearing. It may be helpful to enhance a pain and suffering or wage loss claim with the testimony of family members, friends, and/or co-workers. A relatively modest expenditure of time and money to present these corroborating witnesses may be beneficial.
DEFENDANT -Important hearing/conference items for the arbitrator/mediator’s consideration may include a medical chronology and all relevant pre and post-accident records; vehicle damage photographs; and subsequent accident/incident reports.
In Mediation, be candid with the Mediator when in private caucus. Confidentiality and trust are critical for any successful Mediation. Posturing in front of the Mediator (and your client) serves no purpose in advancing your case. A good Mediator will make it very clear that any strategy or confidential information you provide will never be revealed to your opponent and realistically discussing weaknesses as well as strengths of your case only enhances your credibility. Be fully prepared to quantify your damages with back up, i.e. medical bills; wage loss; economic analysis of lost future earnings or earnings capacity, etc.
Richard Fine is currently a mediator and arbitrator associated with ADR Options, Inc.; Resolute Systems, Inc.; Settlement Systems, Inc.; and The Peacemakers. Mr. Fine, a cum laude graduate of the University of Pennsylvania who attended Washington University School of Medicine and received his juris doctor from Dickinson School of Law, began his career clerking for Judge Joseph Sloane of Philadelphia County. He then moved into private practice in Pennsylvania state courts and the U.S. District Court for the Middle District of Pennsylvania, as part of the firm now known as Fine, Wyatt & Carey, where he is presently the senior and managing partner. He has also been admitted to practice before the U.S. Supreme Court. Mr. Fine was appointed by Chief Judge Sylvia H. Rambo of the U.S. District Court for the Middle District of PA to serve as a mediator under the Civil Justice Reform Act of 1990. He was also appointed by President Judge Chester T. Harhut to serve as a mediator for the Court of Common Pleas of Lackawanna County. A former board member and past president of the Lackawanna County Bar Association, Mr. Fine is also a member of the Wayne County Bar Association, the Pennsylvania Bar Association, the American Bar Association, the Association of Trial Lawyers of America, the Pennsylvania Defense Institute, the Pennsylvania Association for Justice, and the International Association of Defense Counsel. Mr. Fine has served in his community as a board member of the Jewish Community Center, the Jewish Federation, the Community Medical Center, Temple Hesed, and Allied Services; a trustee of Webster Towers; and a member of the Mellon Bank advisory board. He currently serves as a hearing committee member with the Disciplinary Board of the Supreme Court of Pennsylvania and has lectured for the Lackawanna Bar Association, the Pennsylvania Bar Institute, and the Pennsylvania Association for Justice. Attorney Fine may be contacted at firstname.lastname@example.org.
Jim Gibbons provides mediation services in commercial, real estate, civil rights, personal injury and medical negligence cases throughout northeastern and central
Pennsylvania. He is certified by the U.S. District Court as a mediator and is
regularly appointed there and in the local county courts as a mediator and
arbitrator. He has spent his entire career in litigation in the state and
federal courts. Attorney Gibbons may be contacted at email@example.com.
Thomas Helbig received his BA from the University of Scranton in 1977 and his JD from Seton Hall University School of Law in 1981. Following graduation, he served as a law clerk to US District Judge Richard P. Conaboy in the US Middle District of Pennsylvania for two years. Prior to beginning his solo practice in 2008, he was a partner in the Scranton law firm of Scanlon, Howley & Doherty for seventeen (17) years and, previous to that, in the Wilkes-Barre law firm of Hourigan, Kluger, & Quinn P.C. for nine (9) years. In addition to his private litigation practice, Mr. Helbig focuses his present practice on mediation and arbitration work. He was recently appointed to the position of Settlement Master in the Court of Common Pleas of Lackawanna County under newly revised Local Rule 212. He previously served as Interim Discovery Master in Lackawanna County, and also as a court-appointed Special Trial Master presiding over jury and non-jury trials. Over the last twenty-five (25) years, he has conducted numerous mediations and arbitrations in third party and first party civil cases.
Lucille Marsh is a partner in the firm of Kreder Brooks Hailstone LLP. She focuses her practice on insurance defense, civil litigation, mediation and family law. She is a graduate of Chatham College and Dickinson School of Law. She has been a Certified Mediator in the United States District Court for the Middle District of Pennsylvania since 1996 and provides private mediation/arbitration services. She is an Adjunct Instructor at Keystone College. Attorney Marsh is a member of the Pennsylvania Bar Association, Lackawanna Bar Association and the Pennsylvania Defense Institute. She has served on various PBA Task Forces and Committees. She served as a member of the Third Circuit Lawyers’ Advisory Committee and Middle District CJRA Advisory Committee. Attorney Marsh may be contacted at Lmarsh@kbh-law.com.