Great Lakes Mediation, LLC
I have more than a quarter century of experience negotiating settlements in complex, multi-party litigations between private parties, public entities, and state and federal regulatory agencies.
Mediation is a confidential, informal process parties can voluntarily undertake in which a neutral third party assists them with negotiation to resolve their dispute. The parties and their attorneys participate and are critical to the process of identifying needs and interests that can affect or define a workable outcome.
Mediation can occur before litigation is filed, early in litigation, or after necessary discovery or motion practice is completed. Courts increasingly request (or require) that parties consider and attempt mediation because it frequently results in early settlement, saving the parties money and the court time, and empowering the parties to tailor a resolution that may meet their needs better than a black-and-white decision by the court.
Mediation may not be appropriate if one or more parties are certain they will win, feel it is important to have an "up or down" decision, or view the case as a matter of principle on which they cannot or will not bend. It requires willingness to compromise and is more effective if approached with active effort to use the process. Counsel's role in mediation is a hybrid of litigation advocacy skills and client counseling skills, with less focus on making one's best argument and more on (a) recognizing the potential downsides of not settling (including the possibility of losing in court) and (b) fashioning terms that meet the client's needs but also can be acceptable to the other side and form the basis of an attractive or, at least, acceptable, settlement.
Sometimes, mediation may morph into arbitration or an evaluative form of mediation in which the parties ask the mediator to change hats from facilitating to arbitrating and make or recommend a decision. Alternatively, sometimes a mediation results in an agreement to undertake certain steps and the parties ask the mediator to remain available to arbitrate any disputes arising out of that work. In either case, it is important for the parties to discuss and agree explicitly on the changed role of the mediator.
Arbitration is more like trial than mediation. The arbitrator is retained to hear both sides and then make a binding decision, as a judge or jury would do, but ideally to do so earlier in the litigation process and with less formality, time and money.
The parties may present their case and leave all decision making to the arbitrator. Or the parties and their counsel may set the arbitration up in one of several ways that will affect how the arbitrator's decision will become the final decision between the parties. For example, if the case will require a dollar award, the parties can select two numbers and require the arbitrator to select one or the other (sometimes called 'Baseball Arbitration'); or the parties may agree in advance on a range that will define the limits of an arbitrator's award.
Arbitration often is required in a contract between the parties as the agreed method of resolving disputes. While dispute resolution clauses can vary and may include mediation or allow for an appeal to a court of an arbitrator's award, most often the agreed arbitration process will produce a final, unappealable decision.
Trained facilitative mediator:
- Harvard Law School Mediation Workshop
- Federal Court Training and Advanced Sessions
- Michigan Supreme Court (SCAO) Training
Bar association leader in dispute resolution:
- Best Lawyers recognition in ADR
- Past chair, local bar association ADR section
- Past vice-chair, ABA ADR committee
- Presenter, panelist and moderator, national and local ADR conferences
- Environmental litigation and enforcement actions
- Commercial litigation
- Intellectual property litigation
- Real property disputes
- Insurance coverage litigation
- Wrongful death
- Numerous other matters.
I am available for state or federal matters in any jurisdiction. Contact me for free conference regarding your case or pre-litigation dispute.
Some cases involve areas of law that are complex and changing, are based on fact patterns that require significant time to evaluate, or raise novel questions that do not readily appear to follow clear precedent. For these reasons and others, it may be a wise use of court resources for the state or federal court to retain a special master with experience in the substantive area of law at issue in the case to oversee discovery, hold a hearing, develop recommended findings of fact or produce a recommended legal holding for the court to review.
The use of special masters is authorized in federal law at Rule 53 of the Federal Rules of Civil Procedure and is often authorized in state law, as well. See, for example, Jokela, Lynn and Herr, David F. (2005) "Special Masters in State Court Complex Litigation: An Available and Underused Case Management Tool," William Mitchell Law Review: Vol. 31: Iss. 3, Article 16.
Environmental law is an example of a substantive area that is complex, varied, evolving and may raise federal and state questions in one case. All of these factors may make environmental litigation matters ones where the use of special masters is helpful and appropriate.