A “Mediation Order on Steroids” – The In re Syngenta Case

By: Donald L Swanson

Proactive mediation seems to be gaining traction in cases with large numbers of claimants and large amounts of money at stake.  Examples are the City of Detroit bankruptcy, the diocese bankruptcies, and the Argentina debt cases.

We can now add another example to the list: the multi-district case of In re Syngenta AG MIR 162 Corn Litigation, Case No. 14-md-2591, in the U.S. District Court for the District of Kansas.

The Judge in the Syngenta case recently entered a proactive mediation order.  It’s been called a “Mediation Order on Steroids!”

The basic facts of the In re Syngenta case are these:

–Syngenta produces seed corn for farmers to plant.

–Syngenta developed a genetically modified strain of pest-resistant seed corn.  Syngenta placed this strain into the market, and farmers began planting it.

–Problems began when China started rejecting all corn shipments from the U.S. containing even a trace of this new strain.

–Corn prices in the U.S. began falling, and U.S. farmers began suing Syngenta to recover their losses.

Earlier this year (on March 23, 2016, at Doc. 1745), the In re Syngenta Judge enters his proactive mediation order titled, “Order Appointing Special Master for Settlement.”

Under this Order, the Judge grants a broad range of authority, “without limitation,” to the special master.  These items of authority are the steroids.  The special master (aka mediator) may, for example:

1. “Order the parties to meet face-to-face and engage in serious and meaningful negotiations;
2. “Construct an efficient procedure” for settlement negotiations, that includes “identifying” and “ordering” the production of information needed “to facilitate settlement”;
3. Conduct “in-person settlement negotiations with the parties and their counsel in all cases”;
4. “Order the appearance of any persons necessary to settle any claims completely”;
5. “Make recommendations to the court concerning any issues that may require resolution in order to facilitate settlement or to efficiently manage the litigation”;
6. “Direct, supervise, monitor, and report upon implementation and compliance with the court’s orders, and make findings and recommendations on remedial action if required”;
7. “Schedule and hold conferences” and “regulate all proceedings”; and
8. “Communicate ex parte with the court at any time.”

These are “proactive” provisions, indeed.  Proactive mediation is, obviously, alive and active in the In re Syngenta case.