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Articles & Mediation Tips

Private Progress

Los Angeles Daily Journal
Verdicts And Settlements Section (p.13)
February 18, 2000

BY ALEXANDER S. POLSKY

Risk-based dispute resolution follows a familiar format, in which the mediator identifies the conflict and creates the atmosphere to permit resolution. The mediator must learn the nature of the dispute and identify below-the-line interests and issues that transcend traditional remedies. The mediator should introduce the risk-based dispute resolution process before the parties exchange views. The mediator defines the goals, sets the tone and discusses the proceedings. Each side must know that the mediator will focus privately on the sole issue of the risks and costs of proceeding forward.

Following the introduction, the mediation begins with a plenary session, in which the mediator asks each side to present its views. The private caucus follows the plenary session, and here the difference between risk-based and traditional mediation becomes apparent.

When shifting to private caucus, the mediator should provide the side left alone with a resolution-oriented private activity. This varies depending on the circumstances of the case.

A good initial approach, immediately after the plenary, is to ask the waiting parties to write every reason to settle and every reason to continue the dispute. The mediator discusses the results of the exercise on return. When this happens, the mediator must define the process in the introduction.

After the initial private caucus, an effective exercise is to ask the parties to work with their legal representative, acting as an adviser, not as an advocate, to answer four questions:

• AVP. What is the likely outcome if the fact finder accepts the other side's version 100%?

   

   

• RVP. What is the likely outcome if the fact finder accepts some but not all of the case as presented? Why might these parts be accepted?

• C. What is the total dollar cost of proceeding from this point through trial?
   
• PSV. Balancing the AVP against the RVP and considering costs, what is the present acceptable settlement range?

This risk-managed approach focuses the parties on business considerations, rather than on the emotional issues within the dispute, examining the risks and costs of proceeding. This ensures that the party understands that, whatever the situation, the litigation has its down sides.

A successful mediator recognizes when risk-based mediation is appropriate. This process is advantageous in highly sensitive situations. These frequently occur in labor law cases, employment matters including sexual harassment, and injury cases. In these types of proceedings, the mediator should begin with the traditional model and shift to risk focusing after establishing some trust between the parties and the neutral.

Alexander S. Polsky is a principal and founding member of JAMS (Judicial Arbitration and Mediation Services) for whom he provides mediation arbitration and discovery referee services He specializes in complex commercial matters construction, medical malpractice, employment and serious injury cases.
He can be reached at ADR-Mediate.com