A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys:
–Passive mediators must wait to be engaged and then assist with disputes the parties identify; and
–Litigation attorneys are fighting the case in court—they are active belligerents.
So . . . the practical effect, in a typical lawsuit mediation, is that the mediator, without any coercive authority whatever, must (i) wait for active belligerents to voluntarily belly up to the negotiating table, and (ii) then create a negotiating table climate where a settlement between belligerents can happen.
This mediation model has some obvious limitations.
But there is another way.
An August 9, 2017 Order (Doc. 3366) shows another way in the farmer class action of In re Syngenta AG MIR162 Corn Litigation, pending in the U.S. District Court for the District of Kansas, Case No. 14-md-2591, MDL No. 2591, and related lawsuits.
The August 9, 2017 Order, (i) describes the role of the “Special Master for Settlement” (aka mediator) previously appointed under Fed.R.Civ.P. 53, and (ii) appoints a “Plaintiffs’ Settlement Negotiation Committee” to “work toward a fair and expeditions resolution” of the class action disputes.
Special Master for Settlement, aka Mediator
The role of the Special Master for Settlement, aka mediator, described in the August 9, 2017 Order, is proactive instead of passive. Here is a description of the proactive mediator’s “authority, without limitation,” in the Order:
She is “to construct an efficient procedure to engage the parties in settlement negotiations” by,
–“conducting in-person settlement negotiations with the parties and their counsel,”
–“ordering the appearance of any person necessary to settle any claims completely,” and
–“making recommendations to the Courts concerning any issue that may require resolution in order to facilitate settlement or to efficiently manage the litigation.”
This is a proactive role providing coercive authority to the mediator. The coercive authority, however, relates exclusively to process issues: e.g., ordering appearances and recommending Court action. The coercive authority has nothing to do with cajoling or suggesting or demanding a substantive settlement.
The August 9, 2017 Order appoints a “Plaintiffs’ Settlement Negotiation Committee,” aka settlement counsel, to “work toward a fair and expeditious resolution” of the class action claims and related lawsuits.
Settlement counsel is a well-established, but infrequently utilized, role. Settlement counsel are hired to pursue negotiations toward settlement of the case; while litigation counsel are, simultaneously, preparing for trial with 100% devotion and undivided attention as belligerents–they aren’t even thinking about settlement.
This division of labor can work well in all types of cases – but with particular effectiveness in difficult cases. This is how it should be done.
The In re Syngenta Case
The In re Syngenta case identified above is proceeding as a class action, with similar and inter-related cases pending in other state and Federal courts. Multiple bellwether trials are scheduled to occur over the next year. One bellwether jury trial already occurred in June of 2017, resulting in a large verdict in favor of the farmer plaintiffs. The next bellwether trial is scheduled to begin on September 11, 2017, in a Minnesota state court.
It will be interesting to see how the In re Syngenta cases develop in light of the August 9, 2017 Order and upcoming trials.
The combination of the Special Master for Settlement and the Plaintiffs’ Settlement Negotiation Committee established by the August 9, 2017 Order, appears to be an excellent approach for addressing this difficult case.
The recognition that mediators may need to be proactive is an excellent insight. The Order described in Don Swanson’s article is a good beginning in making proactive mediation acceptable, more widely recognized and used as an approved approach in court-ordered mediation. Some cases beg for this approach; but most mediators are trained to a default mediation method, which emphasizes self-determination and results in “passively leading” the parties to reach their own resolutions.
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Thanks for these insights!