Moderator – A Different Way to Approach the Mediation Process
Written by Randall E. Butler, P.C. –
Mediation & Conflict Management
Copyrighted by Randall E. Butler, all rights
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.
Description of the Underlying 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
Original Plan: A Settlement Conference.
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
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
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
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
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
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.
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.