In the next weeks and months I'm going to be writing about a very underutilized tool for case disposition. As everyone knows, I'm all about looking for ways to help lawyers resolve case issues. I invented Litigation Lab, something never done at any other law school, to help lawyers with their cases and to help law students get real world experience. It worked great and is still going. As a judge, I tried hard to advocate for better ways to handle and resolve cases, one of which was summary jury trials. Now, I think that binding mediation needs to be looked at carefully. It's basically a cross between arbitration and mediation but the test is exactly how it's done. Some lawyers have tried it with a mediator who looks at it as two separate processes. That is not at all what I'm advocating. It should be done as a totally blended process.
Here is a very quick sketch of how it should work:
I am strongly suggesting that you give this a shot – I think you'll find it can work.
Contact me for more details.
- Final disposition that day.
- You have two ways to win because you can either convince your opponent (like in mediation) or me (like in arbitration)
- I'm working with both sides to come to a joint decision. We're going to be discussing and arguing the case, in and out of caucus. You will be negotiating with me. So will your opponent.
- I'm trying hard to get a deal, but I'm able to let everyone know where I stand on issues as we proceed. That means you can convince me as we go, and it means you won't be surprised by the award if we can't agree.
- Use high/lows.
- Defense can get a "not guilty" because if they can't convince plaintiff to take their lowball offer, after extensive guided negotiation, I may ultimately agree that they're right. Alternatively, plaintiff could get a "home run" if the plaintiff can't convince their opponent to settle, I may ultimately agree that they're right.
I am strongly suggesting that you give this a shot – I think you'll find it can work.
Contact me for more details.