Ten Ways to Get Sued

Remember Paul Simon’s, “Fifty Ways to Leave Your Lover?”

Just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy,
Just get yourself free…

What does this have to do with ADR Law?

According to an article by Michael Moffitt, Assistant Professor and Associate Director of the Appropriate Dispute Resolution Program, University of Oregon School of Law, there is another “song” mediators should keep in mind: “Ten Ways to Get Sued: A Guide for Mediators” (8 Harv. Negot. L. Rev. 81 (2003).

As Moffitt correctly points out, mediators have been practicing for decades – in perhaps millions of cases by now – without significant exposure to liability for their actions. Evidence of the perception that mediators do not face much risk of litigation is the low cost of mediator liability insurance compared with that, for instance, for lawyers and physicians.

This may be changing. Moffitt posits ten circumstances that could lead to litigation against mediators for malpractice:

1. Fail to Disclose a Conflict of Interest
2. Breach a Specific Contractual Promise Regarding Structure or Outcome
3. Engage in the Practice of Law
4. Engage in the Practice of Law Badly
5. Breach Confidentiality Externally
6. Breach Confidentiality Internally
7. Maintain Confidentiality Inappropriately
8. Advertise Falsely
9. Inflict Emotional Distress on a Disputant
10. Commit Fraud

Moffitt adds an honorable mention to this list: Mediate Poorly.

This blog is not the place to analyze each of these behaviors carefully. For that, I strongly suggest that you read the article; a link to it is here.

My point is that each of these enumerated items highlights behavior that all mediators – and parties -- should understand are either unethical or unprofessional and could be malpractice and lead to lawsuits. They should result in bad consequences imposed on the mediator.

If mediators practice as poorly as this list implies, there should be more malpractice cases.

Keywords: mediation, alternative dispute resolution, adr, mediator, ethics, unethical, ethical

The Administrative Conference of the United States Returns

How many of you have heard of the Administrative Conference of the United States (“ACUS”)? My guess is that unless you are administrative law cognoscenti you have never heard of ACUS. Yet in some ways ACUS has touched all ADR practitioners and those who represent parties in disputes with the government; ACUS was responsible for the intellectual and legal basis for much of ADR in, by, and around the federal government.

ACUS was a small government administrative law think tank that addressed government processes; it lost its funding during the mid-1990s government cost cutting but has been reauthorized by Congress and funded by $1.5 million for FY 2009.

Prior to its demise, ACUS organized and facilitated administrative law experts’ studies of many aspects of the problems affecting government decision-making, especially administrative rule-making and settlement of enforcement matters, and it recommended ways to improve regulatory efficiency.

It was composed of about 100 members from academia, government and private law practice serving on a volunteer basis and had a permanent staff of about 20 at the time it closed. Despite its small staff and the voluntary nature of its members, ACUS produced numerous studies, reports and recommendations that suggested how to improve government administrative processes.

In the early 1980s ACUS recognized that ADR techniques could be used to resolve disputes and develop federal government regulations. ACUS developed the reports and intellectual underpinning that let to much greater use of ADR by the federal government (e.g., Administrative Conference of the U. S., Sourcebook: Federal Agency Use of Alternative Dispute Resolution by Marguerite S. Millhauser and Charles Pou, Jr., (Office of the Chairman, 1987) and Negotiated Rulemaking Sourcebook by David M. Pritzker and Deborah S. Dalton (Office of the Chairman, 1995)).

ACUS set the framework for the Administrative Dispute Resolution Act (ADRA, the reauthorized version of which can be found at 5 U.S.C.A. § 571) and the Negotiated Rulemaking Act (now codified at 5 U.S.C. §§ 561-570), and it brought ADR techniques out of the federal government’s closet and into common usage.

Published reports suggest that the White House may announce a nominee to chair a newly reconstituted Administrative Conference of the United States (ACUS) before the current fiscal year ends on September 30. A new ACUS chairman would have the authority to hire staff and set up the agency.

According to these reports, Paul R. Verkuil, a prominent administrative law professor at Yeshiva University's Cardozo Law School in New York appears to be the leading choice to be nominated for ACUS chairman. Verkuil, a former president of the College of William and Mary, was also dean of Cardozo and Tulane Law Schools.

ACUS will improve the discourse about administrative practice and the use of ADR techniques by and around the government and on how to increase the public’s knowledge and involvement in the federal government.

This is great news.

Keywords: mediation, alternative dispute resolution, adr, alternative dispute resolution, acus, administrative conference of the united states, administrative conference

Final Thoughts on Picking a Mediator

My last two posts addressed questions about mediator roles and functions and mediation styles. It can be difficult to select an effective mediator as there are no state or national licensing requirements or mandatory professional standards governing private mediation services. There are many mediators with many different practice areas and subject-matter experience.

Most parties desire a mediator with experience related to the merits of the matter in dispute. I agree with this view generally, if only because it can be cost-effective to engage a mediator who does not have to be educated about the language of the dispute and has some sense of the alternatives parties have to a negotiated agreement. Mediators are much more helpful if they speak your language and understand the alternatives you are considering.

However, you need to be careful that this understandable desire to select someone who speaks your language and who has “walked in your shoes” does not result in a mediator who is so immersed in the matter or issue that he or she “knows” the answer and will function as a quasi-judge. After all, the dispute is yours, not the mediator’s. In my experience parties often wish to develop an agreement themselves and do not want mediators to function as quasi-judges. In fact in most situations I would not choose a retired judge for this very reason.

Often parties consider mediation after the dispute has arisen and therefore have no agreement regarding how to select the mediator. The simplest method is for all parties to suggest names informally to see if there is someone on whom all parties can agree. However, if that does not work, parties can propose a set number of suggested names and rank the list from first choice to last. The mediator with the lowest combined score is the one selected. Other methods include conducting group interviews and agreement by consensus (often used in multi-party disputes); or parties can submit names to an impartial third party such as a tribunal administrator or even a judge.

There are innumerable rosters and lists of mediators. Two that list experienced mediators (perhaps I am biased because I’m listed on both) are, for national disputes: mediate.com (also a rich source of information about mediation as well as a roster of all types of mediators around the nation); and, for Maryland, DC and Virginia disputants, CreativeDisputeResolutions.com -- an excellent source of well-qualified dispute resolution professionals throughout Maryland, Virginia and the District of Columbia. Creative Dispute Resolutions provides tribunal administrative services and has examples of mediation and arbitration contract clauses posted on its web site.

Other factors that parties often consider when selecting a mediator are: past training, availability to meet the parties’ schedule, subject-matter experience, costs and possible conflicts.

Finally, and perhaps my most important advice -- be willing to use “their” mediator. If the mediator is a reputable neutral – easily learned by checking references -- then you have a lot to gain and little to lose by agreeing to the other side’s mediator. First, you will have started the negotiations with a positive achievement. Second, "their" mediator might be able to help the other side understand the wisdom and strength of your case -– after all they must have confidence in the mediator.

Remember the mediator, even an evaluative mediator, does not have the power to make a final decision. Only the parties can agree to resolve a mediated dispute. So you are not giving someone your proxy to resolve the dispute. You always have the final say.

Keywords: mediation, mediator, how to chose a mediator, adr, alternative dispute resolution, analytical, evaluative, facilitative

More Considerations when Selecting a Mediator -– Mediation Styles

Last week I set out some functions and roles mediators serve. This week I want to write about mediation “styles.” Many mediators claim to practice with a certain style. The two basic types of mediation style in commercial, environmental and policy mediation are the so-called “facilitative” and “analytical” styles. Analytical is also sometimes called evaluative -- but see below for more on that. Often mediators will have information about their “style” on their web site; if not, ask them.

Mediators who practice as “facilitative” mediators focus mainly on process to ensure adequate communication and appropriately contain emotions. Facilitative mediators see themselves as responsible for only process and do not have an interest in the merits. They generally refuse to express views on the merits of a dispute. From the list of techniques in last week’s post, facilitative mediators tend not to play the roles of Substantive Evaluator, “Heavy” or “Scapegoat,” Lawyer or Technical Expert, Head Banger or “Closer.”

“Analytical” mediators, on the other hand, actively participate in discussions (generally privately) about the strengths and weaknesses of each party’s issues; may opine (generally in private sessions) on fairness or possible judicial or administrative outcomes; often work with parties privately to develop settlement options; and actively push parties toward settlement. They tend to employ the full range of the techniques I listed last week.

There is a difference, in my opinion, between strictly evaluative mediators and analytical mediators. Evaluative mediators tend to opine more often and more directly on the ultimate merits of the case. In many ways evaluative mediators are closer to non-binding arbitrators where they hear the parties’ cases and express a view about the final result.

Analytical mediators, on the other hand, work so that the parties develop the agreement, not the neutral; however, when useful, analytical mediators are willing to discuss strengths and weaknesses of parties’ arguments.

Both techniques are valuable, but analytical mediators are true mediators -– in that they work with the parties to assist them to reach agreement, while evaluative mediators are closer to non-binding arbitrators -– in that they listen to the parties’ cases and express an opinion about how they should settle. However, both techniques are mediation in that no mediator, whether facilitative, analytical or evaluative has the power to decide the issue.

There are two schools of thought regarding mediation styles. Obviously much depends on the nature of the case, the parties and, as I will discuss in next week’s post, parties’ experience with or the reputation of the mediators. One school suggests that mediators should not become involved in the merits of the case, rather the neutral should simply address the process issues. The other school suggests that the mediator should assist the parties on the merits of the issues in the interests of settlement. The best mediators use both process and analytical skills.

Next week I will discuss some of the actual mechanics of mediator selection.

Keywords: mediation, mediator, how to chose a mediator, adr, alternative dispute resolution, analytical, evaluative, facilitative

Some Considerations to Think About When Picking a Mediator

In my last post, I focused on the considerations to think about in deciding whether to mediate a dispute. This week I want to focus on functions and roles when thinking about selecting a mediator. These include:

Process Facilitator: Setting process ground rules, agendas and meetings; keeping time (sometimes described as the “meeting metronome”); insuring that everyone has the opportunity to speak, etc.

Substantive Evaluator: This role can be both problematic -- it can be easy for the mediator to lose her/his perceived neutrality -- and a powerful aid to resolving the dispute. It is very dependent on the skill and experience of the mediator.

Legitimizer: Mediators are often asked: “What have others done? What are the norms? What are some objective measures?” A settlement based on some sort of “outside” or “objective” measure often makes it easier for parties to agree.

Trainer and Coach: Also a very powerful function when mediators coach parties privately about how to express their views and arguments so others can hear them more effectively. This role is important but not much discussed or understood; mediators often work with parties privately to help them explain their views/positions/demands to the other party without emotional overtone and phrased to also recognize the other party’s legitimate interests.

Problem Explorer: Similar to coaching, mediators often work with parties in joint meetings to explore the full dimensions and implications of a problem and consider possible alternative definitions of the problem.

Reality Tester: A very common technique where the neutral asks parties about their BATNAs – Best Alternatives to a Negotiated Agreement (i.e., “What will happen if you don’t settle this?”)

“Heavy” or “Scapegoat”: Sometimes it falls to the mediator to deliver the bad news. As with many of these techniques, the skill with which mediator performs this task is critical and can enable the parties to continue discussions and achieve settlement despite difficult conversations.

Lawyer or Technical Expert: Sometimes parties find the so-called expert, an experienced attorney or judge, a technical expert or sometimes simply a typical prospective juror helpful. As with all of the techniques, use of this technique is dependent on the mediator’s skill and experience.

Head Banger or “Closer”: In the end, this is the sine qua non of effective negotiations. To reach agreement, the parties have to “close the deal.” Sometimes this is difficult, even after the major issues have been resolved. Mediators can function as the advocate for settlement, keeping parties focused on the ultimate goal and asking parties to consider the alternatives to a negotiated agreement when they – all too often – stray from the path.

More about what to consider when picking a mediator in next week’s blog.

Keywords: mediation, mediator, how to chose a mediator, adr, alternative dispute resolution

Why Mediate?

Our firm often represents small businesses, individuals and non-profit organizations where we have to weigh the merits of arbitration, mediation and litigation. (My partner Cecilia Jones, in our firm’s Business Law 101 blog reviews some of the considerations savvy business owners must take into account when pursuing debts.)

We encourage those of our clients who seek our advice when negotiating contracts and leases to include a provision that calls for the mediation of disputes between the parties before they deteriorate to the point where the only recourse is arbitration or litigation. Why? Because, given that both arbitration and litigation can be prohibitively expensive and time-consuming, we believe that mediation is often the best approach.

Mediation is becoming the preferred method for resolving most conflicts because it is cost effective, allows parties to retain control and is uniquely flexible regarding the process, the issues under discussion and the possible results.

One of the reasons mediation is so cost-effective is that litigation generally requires extensive discovery as often does arbitration. Mediation, on the other hand, does not, as the mediator can assist the parties’ exchange of relevant but limited information before the first meeting. These costs savings alone can be quite significant.

Mediation is often viewed as appropriate only for small cases but, on the contrary, it is often most useful and productive in the largest and most complex cases, where discovery can otherwise quickly get out of control -- both cost-wise and time-wise.

Complex case mediation (the type I call “Analytical Mediation” – see our web site) generally begins with facilitated limited discovery, often worked out by telephone before the first meeting. During the initial meeting the mediator assists the parties in weeding out secondary and tangential issues, focuses them on the determinative issues, which has the added benefit of narrowing the scope of the discovery necessary to inform the parties and their counsel and move the case to resolution.

Another benefit of mediation –- be it a small matter or a complex case –- is that clients are directly and intimately involved, which allows them to better understand the facts, the law and the other realities in the case; this, in turn, enables them to better understand their settlement options.

It is important to note that mediated settlements are not restricted to the remedies available to the courts, and parties can –- and frequently do –- develop solutions that are unavailable from a court, including business-sensible solutions. In mediation, opposing parties are actively involved and do not communicate solely through counsel.

Because mediation is voluntary and non-binding unless and until a settlement is achieved, there is no guarantee of a successful resolution. There is, however, a guarantee that the parties and their respective counsel will gain a greater understanding of the issues and legal principles involved and will, perhaps most importantly, have the opportunity to see the dispute from the other sides’ point of view.

Next week, I will discuss the importance of selecting the right mediator and the process for doing so.

Keywords: mediation, mediation process, mediation steps, mediation pros, mediation cons, mediation costs

Liability Limits & the Burlington Northern & Santa Fe Railway Co Case

Last week I wrote about a new case regarding hazardous waste law, the U.S. Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States (556 U. S. ____ (2009)).

While it will take time for all of the implications of the Burlington Northern case to sort out, some are immediately clear. Because the Court has narrowed the definition of “arranger,” parties are not likely to have “arranger” liability if they only sold product that contributed to the contamination.

The more interesting change flowing out of this decision is the divisibility or apportionment of liability issue.

The Burlington Northern case appears to allow settlement based on “several liability” (i.e. the share of costs attributable to that one party alone) at sites where the shares of liability (and costs) can reasonably be divided based on the facts and circumstances at that site.

This means that at sites where the harm can be apportioned, the government will be responsible for the costs attributable to “orphan shares” -- liability attributable to insolvent or defunct parties -- as responsible parties will have liability only for their divisible portion of the costs.

Burlington Northern seems to allow parties many avenues to limit their liability to their “divisible” or “several” share using “reasonable” apportionment calculations. Prior to this decision the courts restricted divisibility and several settlements to those rare cases were costs were clearly attributable to only one set of parties based on unusual circumstances.

This is a big deal at sites where the parties can establish a “reasonable basis” to apportion liability and there is a potentially large orphan share.

I believe this case will give incentives to PRPs to gather facts related to divisibility to support settlements based on several liability and to propose settlement with the government based on each party’s divisible liability, leaving the government with no one to pay for the costs attributable to the orphan shares.

This could lead to the government paying more for orphan shares than in the past, putting more pressure on Congress to reauthorize the “Superfund” tax, which expired in 1995.

More about Superfund, cost allocation and Superfund taxes in subsequent blogs.

Keywords: cercla, superfund, superfund tax, burlington northern & santa fe railroad v. united states, burlington northern & santa fe railway co vs u.s., burlington northern, santa fe railway co, santa fe rw, arrange liability, prp, potentially responsible party, hazardous waste, hazardous waste law, orphan shares, liability