Mediator as Moderator – A Different Way to Approach the Mediation Process

Written by Randall E. Butler, P.C. – Mediation & Conflict Management
(Randall@ButlerMediation.com)
Copyrighted by Randall E. Butler, all rights reserved. 

Several months ago I was asked to conduct a mediation that, if not experimental in its format, was at least out of the ordinary for the lawyers involved and for myself. In that mediation, the lawyers decided to bring expert witnesses to the table for a face-to-face confrontation on the issues crucial to resolution of the case. With the permission of the participants, I would like to describe that mediation and make some observations about the effective use of the same format in other cases. In order for the reader to better understand the changed format of the mediation, I will begin with description of the underlying case.

The case involved a claim brought on behalf of a person who bad allegedly suffered severe brain damage as the result of the alleged negligence of the defendant After the case was filed, the court set an early trial date and settlement discussions began fairly quickly. Due to the nature of the injury all the parties agreed that the claimant would need continuous care of some nature for the rest of the claimant’s life. But they were divided on the nature of that care and the amount of money that would be required to provide appropriate care for the claimant in the future. Key questions included: What therapeutic modalities would be effective and therefore necessary? What form of custodial care should be undertaken? What were the reasonable and necessary costs?

The plaintiffs had hired a neurologist to prepare a life care plan for the claimant. The defendants had hired both a life care planner and a neurologist. The experts engaged by the parties had fundamental differences of opinion on all of the key issues. As a result, the parties were literally millions of dollars apart on their respective evaluations of the case.

The lawyers for the plaintiffs and defendants originally planned a meeting to discuss the case and the possibility of settlement negotiations. As the day for the meeting approached, the plaintiffs’ attorney called the lawyer for the defendants and advised that he intended to invite his clients to the meeting. The defense lawyer agreed and said her clients would also attend. Then one of the lawyers decided to bring a life care expert. The other lawyer agreed and decided to do the same. At the last minute, they both decided that, with so many parties and expert witnesses attending, they should call me to act as a referee or moderator at the conference. The conference was ultimately attended by: the representative who had brought the suit on behalf of the brain-damaged individual; the lawyer for the plaintiffs; a representative of the defendant; the lawyer for the defendant; the claims manager for defendant’s insurance carrier; structured settlement specialists/brokers for both parties; and the experts engaged by both parties to address the claimant’s future life care needs.

The lawyers felt it was necessary for their clients to have the opportunity to hear for themselves what the experts had to say. But, they also wisely recognized that such a face-to-face meeting could quickly degenerate and become counterproductive. The participation of a neutral moderator was determined to be beneficial to keep the meeting focused and to calm the situation should tempers flare.

At the outset of the conference, I asked all of the participants to agree that for the next two hours we would limit the discussion to just one issue, and one issue only: What would it take to provide appropriate care for the claimant for the rest of the claimant’s life? We agreed that we would set aside all other issues, especially liability issues for the duration of that two-hour session. I then asked the experts for the respective parties to briefly address two subsidiary questions: (1) What kind of care did the claimant need in the future, and (2) What would that care cost, in present value dollars?

The neurologist engaged on behalf of the claimant began the discussion. As he spoke, his recommendations were recorded in a shorthand version on a large dry erase board. Because I had read the life care plans or reports of both experts, I already had some idea of the points on which there was already substantial agreement. As the expert for the claimant summarized his recommendations, I interrupted to obtain acknowledgement of those points on which the experts for the defendants agreed. Those points of agreement were marked as such for all the participants to see on the board. Then, when it was the defense experts’ turn, they had only to summarize their counter recommendations on those points of disagreement with the opposing expert.

As moderator of this exchange of expert opinions, I also kept a fairly tight rein on each of the experts. It turned out that they knew each other well and were professional rivals. There were times when the experts became somewhat heated in defense of their opinions. But because the parties had agreed that I would control the process, I had the freedom to intervene and keep the discussion on track — and did so on several occasions.

All of the participants had the freedom to ask questions throughout the process. The only proviso was that I was given the option of requesting that a question be reserved for later in the process if I felt that the question was not then on point. All of the participants asked questions — not just the lawyers. In fact, the role of the lawyers became that of facilitators instead of combatants. Both asked questions designed to clarify the opinions of their respective experts. Both lawyers resisted any impulse to make the usual bellicose statements about what they intended to do at the courthouse. As a result, the conference remained focused on the one issue that appeared to be crucial to settlement.

We had agreed ahead of time that at the close of the general session or moderated settlement conference, the parties would meet separately to discuss whether they thought it would be best to proceed with negotiations or to adjourn. The decision was made to proceed, even though no one had come expecting to negotiate, much less settle this very complicated case.

I met with the parties in a series of private sessions in which offers and demands were formulated. We used the list of very specific recommendations for future care to frame all offers and demands. After several rounds of offers and demands, the case settled.

Both of the lawyers and the parties stated they were surprised that the case settled that day. All agreed that while the case may have ultimately settled anyway, the use of the moderated settlement conference coupled with mediation facilitated earlier settlement, saving the parties significant litigation expense. The parties also agreed that the process afforded a more amicable resolution, thus avoiding the high emotional price usually exacted from the participants in litigation.

In preparation for this article, I interviewed the lawyers for the claimant and the defendants. What follows are their responses to my questions.

Q: "Why did you think it might be helpful to have a conference in which the experts for both parties could be present?"

Claimant’s attorney: "First it provided an opportunity to demonstrate the seriousness of the case and our readiness for trial. But, it also gave us the ability to focus on the needs of the client. The representatives for the defendants had the opportunity to see and gauge the quality of our experts on the damages issues."

Defense attorney: "We thought that the projections of costs of care of the claimant’s expert were too high. We also had different opinions about the needs of the claimant. We knew that the case would not settle unless the representatives (not the attorney) who had brought the case on behalf of the claimant knew that the claimant would receive necessary and appropriate care for the rest of the claimant’s life. We were concerned that if the claimant’s representatives heard only from the experts engaged by their attorney, they would have to assume that their experts were right. We needed an opportunity for the claimant’s representatives to see the defense experts in person and accurately judge their credibility for themselves. We wanted the representatives to hear that it was not going to require as much money as they thought to take care of the claimant. We also wanted the interaction between the experts. We were not looking for confrontation, but we did want to give the experts a chance to challenge each other’s opinions and question and test assumptions."

Q: "Was a neutral moderator really necessary?"

Claimant’s attorney: "Yes. I knew we would need a moderator because the two experts were not collegial. They had dramatically differing opinions and even personal agendas. I felt we needed an intermediary to keep the experts focused and to keep the forum from degenerating."

Defense attorney: "A neutral moderator was absolutely necessary. The process is always civil with a moderator. Argument and emotional engagement were avoided. Having a neutral moderator kept the discussion focused."

Q: "Let’s look at the mechanics of the process. What were the features of the moderated conference that you found to be particularly helpful to you and to your clients, and why?"

Claimant’s attorney: "This process provided a means for finding the common ground and focusing the discussion on the areas that we could agree on and not just on our points of Disagreement. It also helped us all to stay focused on the needs of the claimant. Our discussion was turned from ‘what do you want?’ to ‘what is the minimum necessary to take care of the client?’ That focus was vital to getting the case settled.

Defense attorney: "What really helped was to focus on taking care of the claimant. It was particularly helpful that this was stated as the main goal or objective at the very beginning of the conference. You kept us focused on the objective throughout the day — how to provide the best possible care under the circumstances, and not just focus on the dollars. It was also helpful late in the day to have a moderator coming up with innovative ideas based on his understanding of the needs and the circumstances that had been discussed earlier.

Q: "Would you use this process again? Under what circumstances or in what kind of case?"

Claimant’s attorney: "Yes, in the right case. It was particularly important that the representative for the carrier for the defendant had a significant level of discretionary authority. I would not want to go to such effort unless I knew that the insurance company representative had discretionary authority. Otherwise, what is the point?"

Defense attorney: "I would use this process again in an appropriate case. It is particularly appropriate in a personal injury case where the future needs of the plaintiff are paramount. But I would be less inclined to do this in a case in which I wanted to keep the plaintiffs focused on their liability problems."

Three Ingredients

From the mediator’s perspective, the primary benefit of beginning with a moderated settlement conference with the experts participating was the ability to focus on three essential ingredients of any effective mediation. First, our attention was centered on the interests and needs of one of the parties. From the outset, the question addressed by all participants was: If possible, how could the life care needs of this badly brain damaged individual be met?

Second, we spent a large percentage of our time together examining objective criteria for evaluating the needs of the claimant and the solutions proposed by both sides. This is where the participation of the expert witnesses was crucial. Instead of just arguing positions, we had an honest discussion of the proposed solutions of the experts.

Third, we spent time searching "outside the box" for creative options for meeting the interests of the claimants. That search for creative solutions was made possible by the comprehensive discussion of the needs of the claimant and the objective criteria for evaluating those interests and the solutions for meeting them. Instead of spending their time stating and restating their entrenched positions, the parties expended their energies in exploring creative options for meeting the needs of the claimant in a manner acceptable to the defendant.

Focusing on interests not positions, establishing objective criteria for judging fairness, and exploring creative options led to a win-win solution. The defendant was able to resolve a dangerous case early without spending large sums of money on defense costs. The representatives of the claimant were satisfied that the claimant would receive the treatment she needed. The parties were able to forge a wise agreement that fairly compromised opposing interests and resolved the case to the satisfaction of all involved. In the right case involving the right issues, a moderated settlement conference with participating expert witnesses, wedded to a mediation format, has valuable potential as an alternative dispute resolution process.

For further information concerning mediation, negotiation consultation, and conflict analysis, contact Randall Butler at the address below.