MEDIATION

Mediation is a confidential, informal process disputing parties and their counsel undertake to resolve their disagreement. In mediation, a neutral third party guides the disputing parties and their attorneys, helping them work to identify the issues, needs, and interests that define a workable solution to their dispute. Mediation can occur before litigation is filed, early in litigation, or after necessary discovery and motion practice has been completed.

The advantage of mediation is that it empowers parties to tailor a resolution to their dispute that meets their needs better than a court’s black-and-white application of the law. Mediation also frequently results in early settlement, benefiting both the court and the parties, and for that reason courts increasingly request (and frequently require) that parties attempt mediation.

To be successful, mediation requires willingness to compromise and an active effort to negotiate. Parties should recognize the potential downsides of not settling (including the possibility of losing in court) and try to fashion terms that not only meet their needs but also are acceptable to the other side and form the basis of a settlement. Mediation may not be appropriate if one party is certain they will win, feels it is important to have an "up or down" decision, or views the case as a matter of principle on which they cannot or will not bend.

Sometimes, mediation may morph into arbitration when the parties ask the mediator to make or recommend a decision. At other times, 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

In arbitration, disputing parties agree to present their cases to an independent arbitrator, whom they authorize to make a binding decision resolving their dispute. Since the arbitrator’s role is similar to a judge or jury’s, arbitration resembles trial more than it resembles mediation. However, compared to a trial, arbitration is a relatively informal procedure. As an alternative to litigation, it is usually a more efficient and cost-effective way for parties to resolve their disputes.

Parties can approach arbitration in different ways. Perhaps the simplest approach is to leave all decision-making to the arbitrator. However, parties frequently choose to limit the arbitrator’s discretion by presenting him or her with a single, narrow issue. For example, if the arbitrator has been retained to award money damages, the parties might select two amounts and require the arbitrator to select one or the other. (This approach is sometimes called “Baseball Arbitration.”) Alternatively, the parties might agree in advance on a range of amounts that will define the limits of an arbitrator's award.

Contracts often state that arbitration will be the method of resolving any dispute concerning the terms of the contract. While dispute resolution clauses can vary (some may allow mediation or state that an arbitrator's award can be appealed in court), most often the agreed arbitration process will produce a final, binding decision.

TRAINING & EXPERIENCE

Trained facilitative mediator:

• Harvard Law School Mediation 40-Hour Course
• Federal Court Training and Annual Advanced Sessions
• Michigan Supreme Court (SCAO) Training
• Experience working with counsel and their clients to settle cases since the mid-1990s.

Bar association leader in dispute resolution:

• Best Lawyers and other peer-review recognition in ADR
• Past chair, local bar association ADR section
• Past vice-chair, ABA SEER ADR committee
• Presenter, panelist and moderator at national and local ADR conferences

Facilitating settlement as negotiator and mediator for over 20 years:

• Environmental litigation and enforcement actions
• Commercial litigation
• Corporate disputes
• Intellectual property litigation
• Real property disputes
• Insurance litigation
• Wrongful death
• Numerous other matters

Available in any jurisdiction.

SPECIAL MASTERS

Some cases involve either areas of law that are complex and changing, facts that require significant time to evaluate, or novel questions that do not readily appear to parallel clear precedent. In these cases, a state or federal court can retain a special master with experience in the substantive area of law at issue in the case. The special master assists the court with matters related to the master’s area of expertise. He or she may oversee discovery, hold a hearing, develop recommended findings of fact, or produce a recommended legal holding for the court to review.

Rule 53 of the Federal Rules of Civil Procedure authorizes the use of special masters in federal courts, and similar rules exist in many state courts, as well.

Environmental law is complex, varied, and constantly evolving. Cases frequently involve numerous parties and long, convoluted histories. Often litigants present questions of both state and federal law. Because of these factors, the use of a special master is often helpful and appropriate in complicated environmental litigation.