Proactive Mediation is Becoming Standard: The Syngenta Example


By: Donald L. Swanson

In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases.

Fact Background

The cases involve a genetically modified strain of corn developed and marketed by Syngenta.  The new strain gets regulatory approval from the U.S. and other countries – but not from China.

Corn prices begin dropping when China begins rejecting U.S. corn shipments that contain even a trace of this new strain.

So, corn farmers begin suing Syngenta in state and Federal courts throughout the Corn Belt.

–Many of these cases are consolidated into a multi-district proceeding in the U.S. District Court in Kansas.

–Many of these cases are moving forward in a Minnesota state court, where Syngenta is located.

–And many of these cases are pending in the U.S. District Court for Southern Illinois.

The Kansas proceeding is now certified as a class action, though class certification is on appeal to the Tenth Circuit.  Ag Census data from 2012 counts 2.1 million farms in the U.S., many of which plant corn and would be covered by this class action.

Jury trials in the Syngenta cases are scheduled to begin this Spring on individual farmer cases, as class representative or bellweather trials.

[An interesting / ironic twist: Syngenta is being sold to a company from China, and the proposed sale is wending its way through regulatory scrutiny.]

Proactive Mediation Orders

Back in March of this year (2016), all three Syngenta judges enter similar mediation orders and appoint the same mediator (here are links to their respective mediation orders:  Kansas case, Minnesota case and Illinois case).

–Each order identifies the mediator as a “Special Master for Settlement,” because the mediator is appointed under civil procedure Rule 53 on special masters.

These orders establish an atypical mediation process.

— Typical mediation is passive: a mediator is hired to meet with the disputing parties (usually in a one-and-done session) and help them reach a settlement.

–These orders are highly proactive: it’s more like “mediation on steroids.” [I wish I could take credit for coining this phrase.]

Each of these orders provides that the mediator may:

–Order the parties to meet face-to-face and engage in serious and meaningful negotiations.

–Construct an efficient procedure to engage the parties in settlement negotiations.

–Order production of all necessary information.

–Order the appearance of any persons necessary to settle any claims completely.

–Make recommendations to the court concerning any issues that may require resolution in order to facilitate settlement or to efficiently manage the litigation.

–Direct, supervise, monitor, and report upon implementation and compliance with the Court’s orders, and make findings and recommendations on remedial action if required.

–Require the parties to appear in person, via video conference, or telephonically.

–Pursuant to Rule 53(b)(2)(B), communicate ex parte with the Court at any time.

Next Mediation Steps in Syngenta

It’s difficult, if not impossible, to predict when (or if) the Syngenta cases will become ripe for mediated settlements on ultimate/global/final disputes.  Perhaps such ripeness will occur before jury trials begin in the Spring—or maybe ripeness will await the conclusion of some of those trials.

But it seems safe to assume that the proactive mediator is, meanwhile, working diligently and behind-the-scenes to, (i) resolve interim disputes, and (ii) create a structure and organization for addressing and resolving ultimate/global/final disputes when they become ripe for settlement.

–Interim disputes example:  A recent Order (Doc. 2703) from the Kansas Court reveals that the mediator helped resolve disputes over language in the initial class action notice document.

Application to Bankruptcy Cases

Syngenta is not in bankruptcy.

But the proactive mediation established by the Syngenta courts in Kansas, Minnesota and Illinois is similar to the proactive mediation established, and utilized effectively, in the City of Detroit bankruptcy and in other large bankruptcy cases.

Here’s predicting that proactive mediation will (and should) become standard practice in Chapter 11 reorganization cases and in Chapter 9 municipal adjustment cases.

–Here’s why:  because proactive mediation works.

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