As published in The Chicago Daily Law Bulletin.
In this final column, I want to share a new idea for case resolution we’re discussing in an American Bar Association committee.
Ninety-nine percent of cases settle. Yet, lawyers have been trained to fully prepare each case for trial. The widespread belief is that the best deal comes when the case is vigorously prepared and maybe not until the very brink of trial.
In this final column, I want to share a new idea for case resolution we’re discussing in an American Bar Association committee.
Ninety-nine percent of cases settle. Yet, lawyers have been trained to fully prepare each case for trial. The widespread belief is that the best deal comes when the case is vigorously prepared and maybe not until the very brink of trial.
In our system, settlement is an incidental stop on the single-track journey of working up the case. At some random time, someone proposes mediation or pretrial or direct negotiations just spring forth.
Those are all great ways to resolve a case. But, leaving settlement to chance is incredibly inefficient. Since 99% of the cases settle, exhaustively preparing each case for trial means tons of work is never used. Only a very small amount of all the work really affects settlement positions. Even at trial, only a tiny fraction of depositions are actually used. Judges will say there are way too many depositions used even then.
Case resolution using one-shot windows, like pretrials and mediations, can be hard to set and will often miss the target. Sometimes, the real decision-maker is unavailable. Not all the documents are in. Someone still needs another deposition. Someone or something isn’t quite ready. The stars just may not align for settlement at the exact same time.
One-shot methods also put pressure on parties who may feel it’s now or never. They may agree to a deal but leave feeling unsure about what they did.
Our system depends on these fortuitous, unpredictable moments. A small percent get tried. The rest go away somewhere, somehow, sometime.
It’s usually helpful to have a map before starting a new journey.
Wouldn’t it make sense to map a plan for settlement from the moment the case is begun?
The thought is that the parties retain a mediator/facilitator/case manager as soon as possible. Even right at the beginning of the case.
Special masters are used for complex litigation. Why not use the same concept in other cases?
The neutral meets with the parties. Together, they map out a direction for the case. They work out a schedule and a sequence with follow-up dates. They figure out exactly what they want from the facilitator and what authority he or she has.
The work could be planned in stages so that each side gets as much information as needed to evaluate the case and determine their next steps. Each case would have a custom-designed plan.
This allows for endless creativity. Partial depositions, statements and interviews could be used as agreed. The facilitator keeps the parties on track to get the case to a settlement position when all parties feel they have what they need to understand their strengths and risks.
No party is bound. Any party can opt out anytime. If a party wants a trial, the facilitator could work to get the case ready efficiently.
Instead of a one-shot window, a case facilitator has much more time to work with the parties to look for opportunities to effectuate settlement. Maybe a particular deposition or an expert report sparks a settlement initiative that plays out over months. The facilitator keeps the parties thinking about ultimate resolution.
Having a case facilitator on call could head off a lot of fighting. He or she is a conduit for communication at every stage of the proceeding. The facilitator could help with discovery issues including document disputes or deposition conflicts. The facilitator could be empowered to mediate or arbitrate problems as they arose. The goal always: Keep the parties focused on ultimate resolution.
With a tolling or a refiling arrangement, the parties could choose to stay out of court, at least until they felt they had exhausted settlement possibilities. By then, they’d already have a lot of the work done.
Otherwise, the parties and facilitator would work with the court to manage the case.
Anything unable to be mediated or arbitrated by the facilitator could be brought to the court for a ruling.
Using a case facilitator shouldn’t dissuade anyone from going to trial. Before trial, the facilitator could help, for example mediating motions in limine, exhibits and witness scheduling. Stipulations, partial settlements, high-lows and covenants not to execute could be considered.
Using a facilitator for custom case management and extended mediation is unrelated to case value. It doesn’t favor one side or the other. The goal is simply to help the parties efficiently get the information they need to assess risk and let them make their own decisions on how to proceed. It removes the randomness.
Courts are busy. Judges can’t oversee every case. They can’t be available for every argument. They don’t particularly enjoy nasty discovery disputes. Cutting off contentious pretrial fights, helping the parties get to their end goals efficiently and lightening calls should appeal to them.
Bringing in a case facilitator is not for every lawyer or every case, but it is an option to lawyers who want a more deliberate and thoughtful way to get where they want to go.
I want to give a huge thanks to all my readers over the past few years. It’s been a blast!
Those are all great ways to resolve a case. But, leaving settlement to chance is incredibly inefficient. Since 99% of the cases settle, exhaustively preparing each case for trial means tons of work is never used. Only a very small amount of all the work really affects settlement positions. Even at trial, only a tiny fraction of depositions are actually used. Judges will say there are way too many depositions used even then.
Case resolution using one-shot windows, like pretrials and mediations, can be hard to set and will often miss the target. Sometimes, the real decision-maker is unavailable. Not all the documents are in. Someone still needs another deposition. Someone or something isn’t quite ready. The stars just may not align for settlement at the exact same time.
One-shot methods also put pressure on parties who may feel it’s now or never. They may agree to a deal but leave feeling unsure about what they did.
Our system depends on these fortuitous, unpredictable moments. A small percent get tried. The rest go away somewhere, somehow, sometime.
It’s usually helpful to have a map before starting a new journey.
Wouldn’t it make sense to map a plan for settlement from the moment the case is begun?
The thought is that the parties retain a mediator/facilitator/case manager as soon as possible. Even right at the beginning of the case.
Special masters are used for complex litigation. Why not use the same concept in other cases?
The neutral meets with the parties. Together, they map out a direction for the case. They work out a schedule and a sequence with follow-up dates. They figure out exactly what they want from the facilitator and what authority he or she has.
The work could be planned in stages so that each side gets as much information as needed to evaluate the case and determine their next steps. Each case would have a custom-designed plan.
This allows for endless creativity. Partial depositions, statements and interviews could be used as agreed. The facilitator keeps the parties on track to get the case to a settlement position when all parties feel they have what they need to understand their strengths and risks.
No party is bound. Any party can opt out anytime. If a party wants a trial, the facilitator could work to get the case ready efficiently.
Instead of a one-shot window, a case facilitator has much more time to work with the parties to look for opportunities to effectuate settlement. Maybe a particular deposition or an expert report sparks a settlement initiative that plays out over months. The facilitator keeps the parties thinking about ultimate resolution.
Having a case facilitator on call could head off a lot of fighting. He or she is a conduit for communication at every stage of the proceeding. The facilitator could help with discovery issues including document disputes or deposition conflicts. The facilitator could be empowered to mediate or arbitrate problems as they arose. The goal always: Keep the parties focused on ultimate resolution.
With a tolling or a refiling arrangement, the parties could choose to stay out of court, at least until they felt they had exhausted settlement possibilities. By then, they’d already have a lot of the work done.
Otherwise, the parties and facilitator would work with the court to manage the case.
Anything unable to be mediated or arbitrated by the facilitator could be brought to the court for a ruling.
Using a case facilitator shouldn’t dissuade anyone from going to trial. Before trial, the facilitator could help, for example mediating motions in limine, exhibits and witness scheduling. Stipulations, partial settlements, high-lows and covenants not to execute could be considered.
Using a facilitator for custom case management and extended mediation is unrelated to case value. It doesn’t favor one side or the other. The goal is simply to help the parties efficiently get the information they need to assess risk and let them make their own decisions on how to proceed. It removes the randomness.
Courts are busy. Judges can’t oversee every case. They can’t be available for every argument. They don’t particularly enjoy nasty discovery disputes. Cutting off contentious pretrial fights, helping the parties get to their end goals efficiently and lightening calls should appeal to them.
Bringing in a case facilitator is not for every lawyer or every case, but it is an option to lawyers who want a more deliberate and thoughtful way to get where they want to go.
I want to give a huge thanks to all my readers over the past few years. It’s been a blast!