IX. Conclusion

This Article seeks to introduce the caucus method of mediation because it is the process which is the most conducive to conciliation and peacemaking. Through the caucuses, the mediator has an excellent opportunity to become acquainted with the parties and counsel and learn how she can be most effective in resolving the dispute before them. The mediator in this setting seeks not only resolution, but also peace and healing.

The peacemaker is at all times sensitive to the needs of the participants. She seeks to be supportive and works with each by being on their side and not confronting them or putting them on the defensive.

Finally, those who put on the mantle of peacemaker experience a profound change in their personal lives. They find greater patience in dealing with others, and they are more conscious of making others winners, thus they find fulfillment in their own lives. Indeed, peacemaking is the highest calling in the legal profession and one of the highest in life.

* Calkins Law Firm; B.A., Dartmouth College, 1953; J.D., Northwestern University School of Law, 1959. Law Clerk, Judge Elmer J. Schnackenberg, U.S. Court of Appeals for the Seventh Circuit, 1959–61; Dean, Drake University Law School, 1980–88. The Author wishes to thank Jennifer Thurm for her research assistance and helpful comments on this Article.

In this Article there are a number of case studies set forth to illustrate points being made. These studies are actual mediated cases. The names of the parties and in some instances other details are omitted to protect the confidentiality of those settlements.

[1]. See Joseph T. McLaughlin & Karen M. Crupi, Alternative Dispute Resolution, in Arbitration, Mediation, and Other ADR Methods 49, 102 (ALI-ABA Course of Study, Nov. 18, 1993), available at C879 ALI-ABA 49 (Westlaw) (referring to ADR as “a 20th Century solution” for “a 20th Century problem”); Wendy Ho, Comment, Discovery in Commercial Arbitration Proceedings, 34 Hous. L. Rev. 199, 202 (1997).

[2]. Mid-Year Meeting of the American Bar Association, 52 U.S.L.W. 2461, 2471 (Feb. 28, 1984).

[3]. Warren E. Burger, Isn’t There a Better Way?, 68 A.B.A. J. 274, 275 (1982). Supreme Court Justice Antonin Scalia observed that “I think we are too ready today to seek vindication or vengeance through adversary proceedings rather than peace through mediation.” Antonin Scalia, Teaching About the Law, Quarterly, Fall 1987, at 6, 8.

[4]. Richard M. Calkins & Fred Lane, Mediation: A Quest for Peace 4 (2000) (on file with author).

[5]. Id.; see also Douglas King, Comment, Complex Civil Litigation and the Seventh Amendment Right to a Jury Trial, 51 U. Chi. L. Rev. 581, 581 (1984) (crediting “an unprecedented proliferation of new causes of action” as a contributing factor to the increasing complexity of modern civil litigation).

[6]. Calkins & Lane, supra note 4, at 4.

[7]. Id.; see also O.C. Hamilton, Jr. & J. Shelby Sharpe, Discovery Rule Proposals—Two Different Philosophies, 15 Rev. Litig. 341, 343 (1996) (noting “that the escalating costs of litigation in discovery” was a factor considered by the State Bar of Texas Court Rules Committee when it proposed changes to Texas’s discovery rules); Daniel A. Fulco, Note, Delaware’s Response to Inefficient, Costly Court Systems and a Comparison to Federal Reform, 20 Del. J. Corp. L. 937, 939 (1995) (asserting that “[t]he extreme cost of litigation is largely due to the discovery process”).

[8]. Calkins & Lane, supra note 4, at 4; see also Richard J. Haayen, Destroying Myths, in Working Toward a Fairer Civil Justice System 16, 20 (Insurance Info. Inst. ed., 1987) (“The problem is that the liability system appears to be capricious to the point where the insurers’ ability to predict the real probabilities of liability outcomes has been weakened substantially.”).

[9]. Calkins & Lane, supra note 4, at 4; see also Richard Klein, The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel, 68 Ind. L.J. 363, 390–408 (1993) (noting the caseload crisis in public defenders’ offices across the country, including cities in Georgia, Florida, California, Kentucky, Michigan, New York, Pennsylvania, and Vermont); Keith C. Owens, Comment, California’s “Three Strikes” Debacle: A Volatile Mixture of Fear, Vengeance, and Demagoguery Will Unravel the Criminal Justice System and Bring California to Its Knees, 25 Sw. U. L. Rev. 129, 151 (1995) (noting that many predict that the California courts “will come to a near standstill” because of the increased caseload due to the three strikes rule).

[10]. In re Midwest Milk Monopolization Litig., 510 F. Supp. 381 (W.D. Mo. 1981), aff’d in part, rev’d in part sub nom. Alexander v. Nat’l Farmer’s Org., 687 F.2d 1173 (8th Cir. 1982).

[11]. See Calkins & Lane, supra note 4, at 55–58.

[12]. Memorandum of Mediation (May 2003) (on file with author).

[13]. Michael S. Wilk & Rik H. Zafar, Mediation of a Bankruptcy Case, Am. Bankr. Inst. J., May 2003, at 12, 12.

[14]. Mediation can be described as a voluntary informal process whereby a “neutral” third party assists the parties in their negotiations to reach an acceptable resolution that both can accept without having it imposed upon them. See Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict 6, 15–16 (3d ed. 2003).

Many questions are asked about mediation and caucus mediation in particular, such as the following:

(1) What can be mediated? Early on, mediation in the United States was limited primarily to small claims and neighborhood disputes. The evolvement of conference mediation extended to divorce and employment disputes. See, e.g., id. at 24–27. Caucus mediation has expanded its coverage to include all forms of disputes that find their way into the courts, from personal injury to bankruptcy. See Wilk & Zafar, supra note 13, at 12 (footnote omitted). Any matter that is in litigation is a candidate for mediation. This includes cases involving divorce, child custody, products liability, professional malpractice, wrongful death, workers compensation, construction, contracts, securities, commodities, zoning, construction, patents, copyrights, trademarks, environmental (Superfund cases), partnership, manufacturer-distributor, licensing, and taxes.

(2) When should a mediation be held? There is no set time when a mediation should be conducted. Some are held before a case is filed, some after there has been a jury verdict, and others when the case is on appeal. Because a primary consideration is to reduce costs, however, the earlier the mediation is successfully held, the better it is for all concerned. Of course, to mediate too early, before the facts are developed, can be a waste of resources. As a rule, a mediation can be held when the critical facts are reasonably established. If a case is more complex, the case might have to be filed and some formal discovery conducted.

(3) Where should a mediation be conducted? A mediation can be held anywhere there is sufficient space and facilities to conduct it. Essentially, there must be a conference room where all participants can be present for the opening session. Thereafter, separate break out rooms are needed to accommodate each party and counsel for the private caucuses. It is irrelevant whether the mediation is held at a party’s or an attorney’s office—there is no “home court advantage” in mediation because the mediator is not empowered to decide the case.

(4) Who should attend the mediation? For caucus mediation to be successful, the decision makers should be present. It is difficult to conduct a mediation by telephone and develop the rapport and trust required to reach a resolution. If an insurance carrier is defending an insured, it is sufficient that only the insurance adjuster be present. There are times when the adjuster may be available only by phone because of distance or the small amount of the matter in question. In such a situation, the mediation can still proceed forward, but the possibility of settlement is substantially reduced.

In caucus mediation, counsel for the parties should attend. Only an attorney can answer many of the questions a mediator will ask, such as the strengths and weaknesses of the case and the best and worst case scenarios of what a jury could find. Ultimately, it is the attorney who will encourage a party to make the final compromise and settle. Having only one side represented by counsel places an undue burden on the mediator because she will be inclined to protect the unrepresented party from the overreacting of the opposing attorney, thereby undermining her pledge of neutrality.

The presence of family is often quite helpful if the primary focus is the welfare of the party involved. The only caveat is that presence of family may not be helpful when an elderly parent is involved as a party and her sons and daughters are more interested in what they will inherit rather than the welfare of the parent. This adds a new dimension.

(5) How long does a mediation take? A mediation can take anywhere from a few hours to several days. In most caucus mediations, the matter is resolved in one day. In a more complicated case, where there are many parties, two or three days might be needed. After the first day, however, there is little need for the parties to all be present at the same time because additional joint sessions are usually unnecessary. If the mediation does not settle that first day, the mediator can carry on by caucusing at a party’s or attorney’s office, or by telephone. I have successfully mediated cases for a year or more after the initial session by telephone.

(6) Can there be ex parte communication between the mediator and a party? Because a mediator is not a decision maker, but rather a facilitator, there is nothing improper about speaking to the mediator ex parte, that is, outside the presence of the other party and counsel. In fact, the very basis of caucus mediation, the caucus itself, is an ex parte communication.

(7) How does a party commence a mediation? Generally, the attorneys representing the parties will initiate the process either by contacting a mediator or a service that arranges mediations and has a panel of mediators from which to select.

For a more thorough discussion of these and other questions regarding mediation, see Calkins & Lane, supra note 4, at 70–76.

[15]. Mediation has been documented in China over two thousand years ago. See Jerome Alan Cohen, Chinese Mediation on the Eve of Modernization, 54 Cal. L. Rev. 1201, 1205 (1966).

[16]. Professor Northrop noted that Confucius Chinese considered “litigation” as “second best” in resolving disputes:

The “first best” and socially proper way to settle disputes, used by the “superior man,” was by the method of mediation, following the ethics of the “middle way.” This consisted in bringing the disputants to something they both approved as the settlement of the dispute, by means of an intermediary. This middle man served largely as a messenger. Proper behavior prescribed that he refuse even to arbitrate the differences at the request of the disputants. “Good” dispute settling consisted in conveying the respective claims of the disputants back and forth between them until the disputants themselves arrived at a solution which was approved by both.

F.S.C. Northrop, The Mediational Approval Theory of Law in American Legal Realism, 44 Va. L. Rev. 347, 349 (1958).

[17]. See Jay Folberg & Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation 1–2 (1984) (noting the widespread use of conciliation and mediation to resolve disputes in China and Japan); Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 29 (1982) (noting that in the eastern Asia, litigation is generally considered “a shameful last resort, the use of which signifies embarrassing failure to settle the matter amicably”).

Today mediation boards in China, called People’s Mediation Committees, are the primary institution for resolving disputes and handle over 7.2 million cases per year. See Donald C. Clarke, Dispute Resolution in China, 5 J. Chinese L. 245, 270 & n.95 (1991).

[18]. See Folberg & Taylor, supra note 17, at 2 (“The tradition of conciliation and mediation is so imbued in Japan that there are rumored to be more flower arrangers in Japan than attorneys.” (citation omitted)).

[19]. See, e.g., Moore, supra note 14, at 20 (noting that “Jewish, Christian, Islamic, Hindu, Buddhist, Confucian, and many indigenous cultures all have extensive and effective traditions of mediation practice”); David Luban, Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato, 54 Tenn. L. Rev. 279, 280–81 (1987) (describing the legal system of the early Greeks as essentially a peaceful arbitration process).

[20]. Rules of Discipline of the Yearly Meeting 3 (New Bedford 1809).

Informal dispute resolution was used in many cultures, such as Scandinavian fishermen, African tribes, and Israeli kibbutzim, all of which valued conciliation over conflict. See Jerold S. Auerbach, Justice Without Law? 8 (1983). Native Americans have likewise looked to peacemaking as the primary means of dispute resolution. It is considered sacred justice. It deals with the underlying causes of conflict and seeks to mend the relationship. Diane LeResche, Editor’s Notes, Native American Perspectives on Peacemaking, 10 Mediation Q. 321, 321–22 (1993).

[21]. Susan L. Donegan, ADR in Colonial America: A Covenant for Survival, 48 Arb. J., June 1993, at 14, 15–16; see also Auerbach, supra note 20, at 8 (noting the early colonists’ initial mistrust of the law).

[22]. See Donegan, supra note 21, at 21 (stating that “[t]he rapid development of industry and commerce led to the formation of complex trade and commercial laws which required legal interpretation”).

[23]. Id. The implementation of mediation in labor disputes was the one exception to the trend towards litigation. In 1913, Congress created the Department of Labor and provided that the Secretary of Labor has the power to act as mediator. William E. Simkin & Nicholas A. Fidandis, Mediation and the Dynamics of Collective Bargaining 25 (2d ed. 1986). Mediation was used to expeditiously end labor disputes, which impacted seriously on economic growth. See Moore, supra note 14, at 23 (noting that federal mediation procedures were initiated to “prevent costly strikes and lockouts”). In 1947, Congress created “[t]he Federal Mediation and Conciliation Service (FMCS), an independent federal agency, [which] has jurisdiction over disputes in industries engaged in interstate commerce, private nonprofit health facilities, and agencies of the federal government.” Deborah M. Kolb, The Mediators 7–8 (1983).

[24]. Mediation now has gained acceptance in resolving neighborhood conflicts and settling claims in small claims court. See, e.g., Jennifer E. Beer, Peacemaking in Your Neighborhood: Reflections on an Experiment in Community Mediation 3–4 (1986) (discussing the Community Dispute Settlement mediation procedure, which is a program used to resolve neighbor disputes). See generally Raymond Shonholtz, Neighborhood Justice Systems: Work, Structure, and Guiding Principles, 5 Mediation Q. 3 (1984). Few, however, foresaw the impact mediation would have in all types of civil disputes, from personal injury actions to complex multi-million dollar antitrust class actions. So dramatic and pervasive has been its impact that experts suggest ADR, and in particular mediation, is literally revolutionizing our entire approach to dispute resolution. Judges are leaving the bench to become private mediators and arbitrators. Large volume court venues are drafting top litigators as mediators to assist in reducing their case backlogs. See generally John S. Murray et al., Processes of Dispute Resolution: The Role of Lawyers 329–37 (3d ed. 2002) (describing the development of contemporary mediation through the nineteenth century to present); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. U. L. Rev. 839, 839–841 (1997) (noting the increasingly widespread use of mediation in litigation).

[25]. Hundreds of state statutes establish mediation programs in a wide variety of contexts. See Sarah R. Cole, Craig A. McEwen & Nancy H. Rogers, Mediation: Law, Policy & Practice app. B (2d ed. 2005). Many states have created state offices to encourage greater use of mediation. See, e.g., Ark. Code Ann. §§ 16-7-101 to -207 (1999 & Supp. 2005); Haw. Rev. Stat. §§ 613-1 to -3 (1993 & Supp. 2004); Kan. Stat. Ann. § 5-501 to -504 (2001); Mass. Gen. Laws Ann. ch. 7, § 51 (West 2002); Neb. Rev. Stat. Ann. §§ 25-2901 to -2942 (LexisNexis 2004); N.J. Stat. Ann. § 52:27E-73 (West 2001); Ohio Rev. Code Ann. §§ 179.01–.04 (LexisNexis 2001 & Supp. 2005); Okla. Stat. Ann. tit. 12, §§ 1801–1813 (West 1993 & Supp. 2006); Or. Rev. Stat. Ann. §§ 36.100–.270 (West 2003 & Supp. 2005); W. Va. Code Ann. §§ 55-15-1 to -6 (LexisNexis 2000). See generally Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L.J. 783 (2005) (discussing the function of court-ordered mediation in Illinois circuit courts).

[26]. See John W. Cooley, Mediation Magic: Its Use and Abuse, 29 Loy. U. Chi. L.J. 1, 5 (1997) (noting that “[c]onsensual deception is the essence of caucus mediation”); see also Robert D. Benjamin, The Constructive Uses of Deception, Skill, Strategies, and Techniques of the Folkloric Figure and Their Applications by Mediators, 13 Mediation Q. 3, 17 (1995); Steven Hartwell, Understanding and Dealing with Deception in Legal Negotiation, 6 Ohio St. J. on Disp. Resol. 171, 185–94 (1991) (discussing the use of deception in negotiations); Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 Iowa L. Rev. 1219, 1272 (1990) (noting that “a willingness to lie is central to one’s effectiveness in negotiations”); James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 Am. B. Found. Res. J., 926, 926–27 (addressing truthfulness in negotiations).

[27]. Calkins & Lane, supra note 4, at 70. The mediator utilizing any of the three formats can approach the mediation in an adversarial manner or as a peacemaker. For example, mediators utilizing conference or caucus mediation can play devil’s advocate by confronting the parties and putting them on the defensive until they capitulate. On the other hand, the mediator can fulfill his role as a peacemaker and be supportive and nonconfrontational.

[28]. Id. Michigan utilizes the trial format. Before a dispute goes to trial, the court may require a “case evaluation.” Mich. Ct. R. 2.403; see also James McNally, Letter to the Editor, Mediation in Michigan Is Really a Form of Case Evaluation, 5 Disp. Resol. Mag., Winter 1998, at 2 (“In Michigan, ‘mediation’ . . . is a mandatory form of case evaluation that has been called ‘mediation’ since 1971.”) (citation omitted). A panel of three persons listen to lawyers present their cases and then make a nonbinding award. Mich. Ct. R. 2.403(D), (K)–(L). If either party or both wish to reject the panel’s recommendation for settlement, they are entitled to proceed to trial. Mich. Ct. R. 2.403(N). If they do so, they must improve their position by at least ten percent or a penalty is assessed. Mich. Ct. R. 2.403(O).

[29]. Calkins & Lane, supra note 4, at 70.

[30]. Conference mediation is regularly used in divorce cases. Leonard L. Riskin, Teaching and Learning from the Mediations in Barry Werth’s Damages, 2004 J. Disp. Resol. 119, 134. This is because many times attorneys are not present in order to save costs. Even though conference mediation is used, the mediator may wish to meet with each party alone to clarify a point or two.

Where domestic violence has occurred and a spouse is intimidated by the mere presence of the other spouse, caucus mediation may be the only viable format. See Gay G. Cox & Robert J. Matlock, The Case for Collaborative Law, 11 Tex. Wesleyan L. Rev. 45, 57 (2004); René L. Rimelspach, Mediating Family Disputes in a World with Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program, 17 Ohio St. J. on Disp. Resol. 95, 107 (2001); Kerry Loomis, Comment, Domestic Violence and Mediation: A Tragic Combination for Victims in California Family Court, 35 Cal. W. L. Rev. 355, 364–65 (1999).

In employment discrimination, mediators also tend to use the conference method. For a general discussion on employment discrimination and the current legal discourse, see Tristin K. Green, Work Culture and Discrimination, 93 Cal. L. Rev. 623 (2005).

[31]. For a more detailed discussion of transformative mediation, see Joseph P. Folger & Robert A. Baruch Bush, Transformative Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13 Mediation Q. 263 (1996).

[32]. See Calkins & Lane, supra note 4, at 78–93. Scholars have debated whether conference mediation is preferable over caucus mediation. Those advocating the former are primarily involved in divorce and employment law, and perhaps have not had exposure to the great expanse of law where caucus mediation is favored. See Riskin, supra note 30, at 133–34; Nancy A. Welsh, Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value, 19 Ohio St. J. on Disp. Resol. 573, 647 (2004). Most authorities agree that caucus mediation plays an important role in the mediation process. See, e.g., Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation, 80 Va. L. Rev. 323, 325–29 (1994) (“Sequential caucusing is particularly adept at responding to informational problems because it is a uniquely meditative way to elicit and channel private information.”); Emily M. Calhoun, Workplace Mediation: The First-Phase, Private Caucus in Individual Discrimination Disputes, 9 Harv. Negot. L. Rev. 187, 189 (2004) (recommending a private caucus between the mediator and the complainant in a discrimination case); Christopher W. Moore, The Caucus: Private Meetings That Promote Settlement, 16 Mediation Q. 87, 88–90 (1987); Jeffrey S. Rosen & F. Alec Orudjev, “Come Now, Let Us Reason Together”: Mediating Investment-Related Disputes, in Securities Arbitration 2003: Simplifying Complexity 444 (Practising Law Institute 2003) (indicating that National Association of Securities Dealers Mediation Rule 10406(e) allows the mediator the discretion to meet and communicate separately with each party); Wilk & Zafar, supra note 13, at 60 (addressing several benefits of caucus mediation, including the opportunity afforded to the parties by letting them meet informally and discuss options to resolve the disagreement); Nancy A. Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?, 79 Wash. U. L.Q. 787, 809–13 (2001) (discussing a number of benefits of caucus mediation, including enhanced communication between the parties and preventing the disputants from worsening their relationship).

Both forms of mediation are extremely important and the mediator needs to be well acquainted with both. Conference mediation should be used in divorce and employment law disputes where an ongoing relationship is important. Caucus mediation is important in other areas of the law where confidentiality is required between the parties in order to fully develop the case.

[33]. See supra note 28 and accompanying text.

[34]. See Maureen E. Laflin, Can Informed Consent Preserve the Integrity of Mediation?, Advocate (Idaho), Nov. 2000, at 12 (noting that “[i]n many situations, a third party neutral with an evaluative orientation will be more effective and more to the parties’ liking than a strictly facilitative neutral”).

[35]. If a mediator is not asked to be evaluative, she should remain nonjudgmental, at least at the early stages of the mediation. There are several reasons for this. First, though being only facilitative, the mediator is often asked, especially early in the mediation, what she believes the case is worth. This can often be a trap to test the objectivity and neutrality of the mediator. If she gives a figure that is not in line with what the asking party expects, the mediator may be considered biased or lacking objectivity.

Second, if the mediator gives a figure in line with what the party asking would like to receive, it will be quite difficult later in the mediation to get the party to go below or above the figure (depending on who is asking). Rarely will a case settle for what a party expects or desires at the initial stages of the mediation.

Third, expressing an opinion as to the value of a case, particularly early in the process, leaves the mediator vulnerable to simply being wrong. No one knows what a jury might do and to express an opinion when not retained to be evaluative in the first instance leaves the mediator vulnerable to attack later if the case is tried and the mediator is proven wrong. Remaining nonjudgmental is most challenging to the attorney-mediator because she is trained to be an advocate and to be evaluative.

[36]. Divorce mediation most often employs conference or transformative mediation. See supra note 30 and accompanying text. I agree with this approach, particularly when lawyers do not participate. However, in most other forms of litigation—including personal injury, malpractice, antitrust, securities, and trademarks—where lawyers are present and actively participate, the caucus form has proven imminently successful. I am aware of mediators using the caucus format and obtaining as high as ninety-five percent or more success in their mediations.

[37]. Some scholars advocate caucus mediation but ignore the great potential it has for conciliation. They see the mediator’s role as devil’s advocate, using deception and illusion to reach resolution. As noted previously, some scholars suggest that consensual deception is the essence of caucus mediation. See Cooley, supra note 26, at 5. Robert Benjamin states the following:

“Mediators, like trickster figures, are in some measure illusionists . . . . Their use of deception and strategic intervention is calculated not for self-gain at the expense of conflicting parties but rather for the parties’ benefit. As a result, ideally, the parties learn, but at the very least they survive the conflict. All human beings, and especially mediators, deceive, manipulate, and even sometimes lie. That is a given.”

Id. at 4–5 (alteration in original) (quoting Robert D. Benjamin, The Constructive Uses of Deception: Skills, Strategies, and Techniques of the Folkloric Trickster Figure and Their Application by Mediators, 13 Mediation Q. 3, 17 (1995)).

[38]. The mediator’s role as peacemaker is utilized not only in disputes between private persons and entities, but between nations. Indeed, when awarding the Nobel Peace Prize to President Carter in 2002, the Norwegian Nobel Committee described the former president’s mediation skills “as a vital contribution to the Camp David Accords.” 2002 Nobel Peace Prize Awarded to President Carter, The Carter Center, Oct. 11, 2002, http://www.cartercenter.org/doc1235.htm. It also noted that he “stood by the principles that conflicts must as far as possible be resolved through mediation and international co-operation based on international law, respect for human rights, and economic development.” Id.

In addition, mediation was “widely used in both Rome and Egypt and by the Greek city-states in connection with their wars.” John D. Feerick, The Peace-Making Role of a Mediator, 19 Ohio St. J. on Disp. Resol. 229, 229 (2003). Louis IX was renowned for his role in arbitrating and mediating disputes. Id.

[39]. See discussion infra Part V.

[40]. See discussion infra Part VI.

[41]. See discussion infra Part VII.

[42]. See discussion infra Part VIII.

[43]. Case Study: This tragic case, in which seven teenagers selling magazines during summer vacation were killed, illustrates the healing effect of peacemaking. Thirteen teenagers were in a van traveling at night to another town to sell magazines. It was late and a police car clocked them at 84 miles per hour on a two-lane highway. The driver, who did not have a driver’s license, tried to switch places with the girl next to him, and they lost control of the vehicle and crashed. In addition to killing seven teenagers, one ended up a quadriplegic and another had a serious head injury. The parents, on behalf of the teenagers, sued the magazine distributor company as well as the owner of the company personally.

The case was mediated and a settlement was reached, which required the approval of all parents and the court to become effective. One father, who sued on behalf of his deceased daughter, and one mother, on behalf of her deceased son, refused to approve. They were so angry they just wanted to punish the owner for the rest of her life.

A separate mediation session was held with just the two parents and the defendant. The parents’ anger and hatred was overwhelming. After seven hours they finally gave in and signed the settlement papers. The mother asked to have an opportunity to meet the owner to tell her how evil she was and what great suffering she had caused to so many. The mediator arranged the meeting.

At first only the mother spoke, telling the owner how she felt. The owner finally responded. She stated that she too had been devastated and ended up in the hospital facing depression. When asked why she had not communicated with the parents, she explained that her lawyers would not allow her to make contact.

For an hour the two women spoke. The owner of the business explained how, as a sixteen-year old, she had been pushed into the streets by uncaring parents and how she had kept her head above water and started the business. She explained that only her faith in God had pulled her through, and now the mother needed to have faith to pull her through this tragedy. They exchanged cards and at the end, the two women hugged each other in tears, promising to keep in touch and continue helping each other. Only peacemaking could have brought this healing of wounds.

[44]. From the commencement of the joint opening session, when all parties and counsel are together, the mediator will set the tone for the entire process in his opening remarks. For an example of an opening statement, see infra note 65.

[45]. Not only can the mediator gain an understanding of the case by learning the weaknesses on each side, but the parties, in confidence, can use the mediator as a sounding board or float figures and suggestions without having to commit to them. In other words, the mediator, without disclosing the source, can ask the other side if it would consider a certain figure or range of settlement.

[46]. The mediator can bring the parties together for an additional joint conference or have counsel for one side explain a point to the other side if the mediator believes that would be more effective than presenting a point herself. The mediator can also bring just the attorneys together for discussion.

[47]. Case Study: In an automobile accident case, a plaintiff pulled out onto a highway and was broadsided by an oncoming car. She claimed that snow was piled high alongside the driveway that she was exiting and she could not see if it was clear to exit, so she took a chance. Plaintiff was seriously injured with medical expenses exceeding $172,000.

Plaintiff sued the driver of the car who hit her, her employer for allowing the snow to be piled up and not removed from its premises in violation of a city ordinance, the snow removal company for not properly removing the snow, and her own insurance carrier on her underinsured policy provision. Her husband sued all of the above for loss of consortium. The defendant driver counterclaimed against the plaintiff, claiming she was at fault for pulling out without being able to see the road. The plaintiff’s employer cross-claimed against the snow removal company.

By having everyone present in one place at the same time, the mediator was able to piece together a settlement all could accept. To have tried to settle this matter on the telephone between the various parties would have been an impossible task because everyone had to compromise.

[48]. See Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides With Confidentiality, 35 U.C. Davis L. Rev. 33, 35 (2001) (stating that “[o]ne of the fundamental axioms of mediation is the importance of confidentiality”).

[49]. In Schumacker v. Zoll, the Court of Appeals of Ohio enforced a confidentiality provision and ordered all references to a mediation communication to be struck from the record after the defendant breached the provision by disclosing to the trial judge certain matters discussed in the mediation. Schumacker v. Zoll, No. L-00-1199, 2001 WL 1198641, at *2–3 (Ohio Ct. App. Oct. 5, 2001). There are, however, a number of cases wherein confidentiality is being eroded. For example, in Olam v. Congress Mortgage Co., the court compelled a mediator to testify when a party challenged a mediated agreement claiming duress. Olam v. Congress Mortgage Co., 68 F. Supp. 2d 1110, 1129–39 (N.D. Cal. 1999). The testimony of the mediator was taken in camera and only after the parties (but not the mediator) waived the protection of confidentiality. Id. The court ultimately found no duress. Id. at 1151. The Olam case suggests that the mediator does not enjoy an absolute privilege of confidentiality, but the privilege is subject to an independent determination by the court regarding whether the “testimony of the mediator should be accepted.” Id. Such an interpretation could seriously undermine the very foundation of mediation and hopefully will be revisited. Another breach in confidentiality occurred in a sanctions hearing for bad faith participation in a mediation. In Foxgate Homeowners’ Ass’n v. Bramalea California, Inc., the mediator found that the defendant acted in bad faith in attending a mediation hearing and recommended sanctions against it. Foxgate Homeowners’ Ass’n v. Bramalea, Cal., Inc., 25 P.3d 1117, 1121 (Cal. 2001). In his report to the judge, the mediator detailed what occurred at the mediation, thereby breaching the confidentiality provision. Id. The trial court entered sanctions, but they were later set aside. Id. at 1119. For further discussion of mediation confidentiality, see generally Anne M. Burr, Confidentiality in Mediation Communications: A Privilege Worth Protecting, Disp. Resol. J., Feb.–Apr. 2002, at 64; Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marq. L. Rev. 79, 80–84 (2001); Ann C. Hodges, Mediation and the Transformation of American Labor Unions, 69 Mo. L. Rev. 365, 436–37 (2004); James K. L. Lawrence, Mediation Advocacy: Partnering With the Mediator, 15 Ohio St. J. on Disp. Resol. 425, 440 (2000); Klaus Reichert, Confidentiality in International Mediation, Disp. Resol. J., Nov. 2004–Jan. 2005, at 60; Dennis Sharp, The Many Faces of Mediation Confidentiality, Disp. Resol. J., Nov. 1998, at 56; Diane K. Vescovo, Allen S. Blair & Hayden D. Lait, Essay—Ethical Dilemmas in Mediation, 31 U. Mem. L. Rev. 59, 80–97 (2000); Wilk & Zafar, supra note 13, at 12.

[50]. Wilk & Zafar, supra note 13, at 58.

[51]. Id. (“[T]hrough shuttle diplomacy, the mediator is in a position to give feedback and bring the parties closer together and, ideally, to agreement.”).

[52]. Case Study: The importance of confidentiality was illustrated in a case in which the plaintiff was injured in two separate automobile accidents where liability was admitted in both. In one, the defendant paid policy limits of $25,000. In the second, the defendant had no insurance and was judgment proof. Plaintiff sued her insurance carrier under the underinsured provision covering the first accident, and under the uninsured provision covering the second accident. The two provisions provided $100,000 coverage each; therefore, her claim was for $200,000, which the defendant recognized was well within what she could recover from a jury because of the seriousness of her injuries. The problem that arose was that the underinsured provision provided that income from collateral sources, such as Social Security, would offset payments made under the policy so that there would not be a double recovery. Plaintiff was receiving Social Security disability payments, which over her life expectancy of forty-two years would far exceed the $100,000 policy limits under the provision. The uninsured provision had no such offset.

Plaintiff’s counsel told the mediator in confidence that he was concerned with the above problem and would settle for $100,000 or slightly less under the uninsured provision. Defense counsel, who represented the insurance carrier, informed the mediator, in confidence, that his client would pay $100,000 if the mediator could get the plaintiff to agree to drop the underinsured claim. However, he was not very hopeful the plaintiff would agree, though he felt the law supported the defense. He added that the carrier might pay a little more to get rid of the case and avoid litigation costs.

The mediator was faced with a dilemma. Plaintiff would accept less than $100,000 and the defendant would pay more than $100,000. He solved this by putting a neutral mediator’s figure of $100,000 on the table, and the case settled. He was able to do this because he learned where each side was willing to go in confidence. In straight negotiations, neither side would have disclosed that $100,000 was an acceptable figure for fear the other party would negotiate off that figure. In other words, if the plaintiff dropped substantially below $200,000, the carrier would know she was abandoning the underinsured claim because of the Social Security offset. In that event, the carrier would have expected to settle for less than $100,000. If the defendant signaled it would pay $100,000, the plaintiff would have demanded more because the costs of litigation would have to be added to the policy limits. Both sides would have been reluctant to “show their hands” for fear the other would take advantage of it. Dealing in confidence with the mediator turned a complex negotiation into a very simple and short mediation, and both sides were pleased with the result.

[53]. Case Study: This flexibility was demonstrated in a case in which the plaintiff, involved in a single car accident, ended up a paraplegic. He was twenty-one years old and was traveling with teenagers, one of whom was driving the car. They had been drinking before the accident, and the defense argued that the plaintiff purchased the beer the underage teenagers were drinking, thereby contributing to the delinquency of minors. The defense responded to a $1 million demand with an offer of $250,000. At the mediation, the plaintiff denied he purchased the beer but admitted he had purchased four wine coolers that he drank himself. Plaintiff offered to settle for no less than $850,000, and the mediation came to a halt. Because none of the teenagers, including the defendant who owned the car, was present at the mediation, the mediator recessed the mediation and visited with the three at their homes. The girls did not know who purchased the beer. The owner of the vehicle, a sixteen year old, explained that the plaintiff, the only one of age, purchased the beer and put it in the trunk of his car. He said that he could not have purchased the beer because of his age, and there was no liquor allowed in his home.

After the interviews, the mediator made an appointment to meet with the plaintiff at his attorney’s office. He asked again whether he purchased the beer and got the same answer that he only purchased wine coolers for his own consumption that Saturday night. The mediator, not believing the plaintiff, asked a second time. This time the plaintiff, in frustration, explained that he did not purchase any beer that Saturday night—he purchased it on Friday night. Plaintiff’s attorney looked shocked at this revelation, and the case settled immediately for $365,000.

[54]. See Steven Weller, John A. Martin & John Paul Lederach, Fostering Culturally Responsive Courts: The Case of Family Dispute Resolution for Latinos, 39 Fam. Ct. Rev. 185, 196 (2001) (expressing the necessity to allow parties to vent in Latino family mediations).

[55]. See generally Moore, supra note 14, at 27.

[56]. See generally id. at 28–29.

[57]. Wilk & Zafar, supra note 13, at 58.

Case Study: One lawyer became quite indignant with the way his clients, three African American college women, had been treated when they applied for a summer position at a fast food restaurant. They were not even given an interview, while three Caucasian high school girls were hired with minimal interviews. The attorney sought punitive damages and demanded $150,000 for each plaintiff in the lawsuit he filed.

At the mediation, the mediator sensed that the three women wanted to settle the case for several reasons. First, they obtained better paying jobs that summer in another state. Second, they did not want to keep coming back to the jurisdiction for depositions and court appearances. Third, there was little likelihood that punitive damages would be permitted because the restaurant hired African American employees both before and after the incident in question. And fourth, one of the supervisors at the restaurant was an African American woman.

The mediator took the lawyer aside, reviewed the facts, and calmed him down. The latter began to realize that the best service he could provide to his clients was to settle the matter and permit his clients to go on with their lives without the interruptions of litigation. The case settled for $25,000 for each woman, and they were most pleased with the result. In this case, the mediator helped the attorney look at the case more realistically without offending him or undermining him in front of his clients.

[58]. See Wilk & Zafar, supra note 13, at 60 (“[M]ediation gives the parties the control of determining the outcome of the dispute and avoids the uncertainty inherent in all litigation.”).

[59]. Case Study: In one case, the plaintiff, the former chief financial officer of a small but highly successful manufacturing company, sued the CEO and the company for sexual harassment. She claimed the CEO insisted on having an extramarital relationship to which she consented, believing that if she refused she would lose her very lucrative position. She finally terminated the affair and the CEO allegedly retaliated by making her job more difficult. She finally quit and sued for constructive discharge. She demanded $800,000.

At the mediation, the CEO admitted to the affair but claimed it was consensual and had begun long before she was hired as chief financial officer. Plaintiff vehemently denied that the affair had begun before her employment. Recognizing that the plaintiff had a right to terminate the affair, which the CEO should have honored, the company offered $300,000 to settle the matter but refused to pay any more. The mediation came to a halt. The mediator then suggested, and the parties agreed, to resolve the matter with a polygraph test. They agreed to be tested on the issue of whether the affair had been consensual and began long before her employment. If she passed and the CEO failed, she would be paid $800,000. If she failed and he passed, she would be paid $100,000. If she chose not to take the test, she would still receive the $300,000; or, if he chose not to take the test, he would pay the $800,000.

An arrangement was made for the same operator to give both tests, the plaintiff in the morning and the CEO in the afternoon. The night before the test was to be given, the plaintiff backed down and accepted the $300,000. At this point, she admitted to her attorney that the affair had begun two years before her employment. The attorney thanked the mediator for finding a way to get to the truth because he never would have knowingly allowed her to perjure herself at trial.

[60]. Wilk & Zafar, supra note 13, at 12.

[61]. Wilk & Zafar, supra note 13, at 12 (“[T]he goal in mediation is to negotiate and reach a settlement through the process itself.”).

[62]. Id. at 58.

[63]. Id.

[64]. In complex multi-party mediations, the parties might even consider pre-mediation caucuses. In this instance, the mediator would caucus separately with each side to discuss preliminary matters to move the process along. Generally, the mediator will ask for a presentation of the strengths of a party’s case so that the mediator will have a better understanding of what the case is about. These preliminary caucuses also help the mediator to become better acquainted with the participants and begin building rapport with them. If there are significant legal questions to be considered, these can also be discussed. If the case involves a construction site or another property, the parties and mediator can use the pre-caucus session to view the premises. If this is done, all involved parties should be present.

[65]. A mediator’s statement at the opening joint session might be as follows:

May I first thank you for agreeing to mediate and working out your dispute in an amicable way that will benefit everyone. Before we begin, it might be helpful if we reintroduce ourselves.

I like to begin a mediation by explaining that I keep it low key. It is a gentle, user-friendly process, and I will keep it that way throughout. It is literally the opposite of going to trial, which is extremely stressful for all concerned, including lawyers who enjoy trying cases.

We will try the case today in a very different way. Instead of one side fighting the other as you do in the courtroom, in this trial all are on the same side, not figuratively but literally, working towards a resolution all can accept. Instead of having jurors, who are strangers, make a decision that may affect you for the rest of your lives, in this trial you will be the jurors, and the decision you make must be one with which you can live.

In being the mediator, I give you a pledge of absolute neutrality—what I do for one side I will do for the other. Also, I will not sit here in judgment in the case and tell you what you have to do. Again, you will make the decision, not me, but I will assist all concerned to reach a decision acceptable to all.

This is a settlement conference, so whatever is discussed is confidential and cannot be later referred to in any proceedings. More importantly, whatever is discussed in private caucus will not be disclosed to any other party, except what you direct me to discuss.

I do ask three things of you. I ask you to be patient, because there is a certain amount of waiting around when I am caucusing elsewhere. I ask you to be flexible, for that is required to reach resolution. Lawyers will always tell you that a good settlement is where everyone gives a little more than originally intended. Finally, I ask you to be creative and think of different ways we can get to resolution.

At this time, the attorneys or representative for each party are invited to make an opening statement. It can be formal or informal—any way you wish. Also, I ask the parties to listen not only to their own lawyer but also the lawyers on the other side. After carefully listening, please reevaluate your own position.

Finally, mediation is a very, very successful process, and working together, as I know we will, we will get this matter resolved.

[66]. See discussion supra notes 58–59 and accompanying text.

[67]. Wilk & Zafar, supra note 13, at 58.

[68]. Case Study: A new adjuster attended his first mediation. The plaintiff, a sixty-two-year-old woman, suffered soft tissue injuries in a car accident. Liability was admitted. Both plaintiff’s counsel and the mediator felt a fair settlement was $20,000 to $25,000.

The adjuster, in the opening session, expressed his deep concern for the plaintiff’s well-being and recovery. He explained that this was his first mediation and he would do all in his power to get the case settled for such a wonderful person. Then, in caucus, he offered $10,000, explaining that this was all the authority given him. He refused to call his supervisor for more authority. Irritated, plaintiff’s counsel was about to terminate the mediation when the plaintiff said she would accept the $10,000. She was told the case was worth more, but she insisted.

When the parties got back together for the final joint session, she went up to the adjuster and gave him a big hug, stating she so wanted the young man to be successful in his first mediation, and she thanked him for being so caring.

[69]. Case Study: Plaintiff in one case was injured in a traffic accident and suffered minor soft tissue injuries. She was pregnant at the time, but this was not a factor in the case. She was off work because of complications with her pregnancy. She was a single mother with a young son and worked at a local hospital as a maintenance person.

At the mediation she demanded $15,000 while the insurance carrier offered $10,000 and would not move any further. The mediator then released the parties to go to lunch. When the plaintiff indicated she would skip lunch, the mediator happened to ask why. He learned that she had no money for lunch or for dinner that evening and could not get food stamps for two more days. He also learned that because of her inability to work, she was three months behind in her mortgage payments. The mediator gave her $20, which she initially refused, but later accepted and went to lunch.

When the parties returned from lunch, he spoke to plaintiff’s counsel who indicated they could settle for $13,000 and would probably be forced to accept the $10,000, because the plaintiff needed funds immediately.

The mediator met with the adjuster and told him he could get the case for $10,000. He then added that if he would settle for $13,000, he could have a real impact on the life of a very deserving person. The added amount would permit the plaintiff to have funds for her and her little boy to live on until she returned to work. She could also bring her mortgage payments up to date. The adjuster realized he was trapped and agreed to the $13,000. He wrote a check out, the papers were signed, and the plaintiff walked out of the office with her settlement funds. In this case, the plaintiff had a hidden agenda which she never discussed until the mediator asked the right questions. She had no idea she could get funds to take care of her family’s immediate needs.

[70]. There are times when counsel will suggest there are no weaknesses, ignoring the obvious. There are several reasons counsel may do this. The attorney may not have worked with the mediator before and is not prepared to make such a disclosure in the first caucus. After several caucuses, when rapport has been established, she may be less reluctant. Or, counsel may feel the client is not emotionally ready to face up to weaknesses in the case. More time is needed to prepare her.

Should counsel state there are no weaknesses or omits an obvious one, the mediator should not challenge her by pointing them out, as doing so would put counsel on the defensive and undermine the mediator’s effort to build rapport. It also puts the mediator on the other party’s side of the case. The better course is to accept counsel’s position and leave for subsequent caucuses a discussion of weaknesses. This can be effectively done by pointing out that the other side, not the mediator, raised certain points as its strengths and plaintiff’s weaknesses. These now need to be discussed so that the mediator can properly address them when returning to the other side.

[71]. Case Study: A case illustrating how a discussion of weaknesses gave immediate direction to a case involved a twenty-year old woman who made a left-hand turn in front of an oncoming truck and was killed. She was going west and pulled into the inside turning lane to go south. The defendant trucker contended that she turned on a red light and not the green arrow. The decedent’s estate argued that the trucker ran a red light and not a yellow light, as he contended.

In the caucus with the plaintiff, counsel, when asked about weaknesses, pointed out that the decedent probably turned on a red light rather than a green arrow, because a driver in the lane next to the turning lane gave a statement that he was stopped because the light was red. He further pointed out that the green arrow went on only when the green light going west went on.

In the caucus with the trucker, counsel candidly discussed the weaknesses in the case. He noted that the trucker, according to the truck’s black box which recorded the truck’s speed, was traveling 50 miles per hour in a 40 mile-per-hour speed zone thirty seconds before the accident. The black box printout then showed that the truck slowed to 40 miles per hour as it approached the intersection and then sped up to 48 miles per hour as it entered the intersection. The trucker stated that as he approached the intersection, he started to slow down but realized he could not stop in time so he sped up, hitting the decedent. Counsel also noted that there were cars going the same direction as the trucker that had stopped for the red light in the outside lane.

The trucker contended he was going into the intersection on a yellow light. In strict confidence, defense counsel admitted this was impossible because the lights turned red for both west and east traffic at the same time, and witnesses going both west and east had stopped because the light was red and not yellow. Recognizing that the decedent would have some comparative fault, both parties compromised, and the case settled after these weaknesses were thoroughly developed.

[72]. A mediator should obtain her own jury verdicts, which are more objective. Mediators working in the Midwest outside the very large metropolitan areas, like Cook County, Illinois, can, for example, contact the Polk County Clerk of Court in Des Moines, Iowa, and get a copy of Polk County jury verdicts.

[73]. When a party makes a first offer or demand that is unreasonable, the mediator should not react or try to get the party or attorney to moderate it. She should just take the demand or offer to the other side with the explanation that it is to be expected that initially plaintiffs start out high and defendants start out low. If the attorney asks the mediator what she would suggest, she should avoid responding and inform counsel she trusts counsel’s judgment in the matter. To respond is a no-win situation. If the mediator is below what plaintiff’s counsel feels is sufficient, it will appear the mediator favors the other side or is pushing. This undermines the rapport the mediator is trying to build.

[74]. Some insurance policies, called withering policies, provide that the amount of coverage declines as attorney fees and costs are incurred. For example, a policy may provide coverage of $500,000 but is subject to being reduced as costs are incurred. At the time of the mediation, perhaps $35,000 has been spent in attorney fees and $15,000 in costs. There is, therefore, only $450,000 still available for settlement. If the defendant expects to spend another $100,000 to defend the case if settlement is not reached, it means only $350,000 will be available to pay any judgment entered. These are considerations a plaintiff must weigh at the time of the mediation because it might be difficult to recover anything from the defendant above available insurance.

[75]. In a case involving a workers compensation lien, the file may still be open for future medical coverage. Many times a carrier will compromise its lien to get a closed file and not have to pay future medical expenses or benefits. Many states provide that the plaintiff’s attorney is entitled to a fee from the carrier, either one-third or one-fourth, if she represents the carrier in the litigation and the case goes to verdict. Therefore, in the mediation the carrier should deduct that percentage in asserting its lien.

[76]. In most jurisdictions, a plaintiff must reimburse her attorney for costs advanced by the attorney, win or lose. Therefore, if the case is expert intensive, costs might be significant, and although the attorney might be on a contingency fee basis, the risk to the plaintiff of losing and ending up owing the attorney money might be too great a risk for the plaintiff to accept. This might be particularly true if the plaintiff is already in debt and bill collectors are in constant contact. It might be a good strategy for the mediator to point this out.

[77]. 42 U.S.C. § 1988(b) (2000). Also of note is 15 U.S.C. § 15(a), which provides in part:

any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.

15 U.S.C. § 15(a) (2000).

In those instances when there is a fee shifting statute, a defendant must be concerned with what is her best net result. For example, if the defendant believes her best case in front of a jury is worth $20,000 and will cost $40,000 to defend, and the plaintiff’s costs and attorney fees are $40,000, the defendant’s best net case is $100,000. If she could settle the case for $50,000, she will save $50,000. This, however, may be considerably more than what the defendant feels is a fair settlement. However, the defendant must look at the economics rather than what she feels is a correct evaluation of the case, which may only be $30,000.

[78]. Case Study: A mediator used costs of litigation to settle an employment discrimination case. Plaintiff, an African American, was allegedly given an inordinate amount of janitorial work although he was a trained diesel mechanic and hired to work on heavy diesel engines. He also complained of racial slurs made by other employees and that he was not given appropriate merit raises. However, the company was able to demonstrate that his wage increases were strictly in line with other mechanics at his level. Consequently, his only real injuries arose out of the racial slurs and the inordinate amount of cleanup work he was required to do. These were provable, but the damages arising from this conduct were minimal.

In the defense caucus, the mediator asked counsel what he thought it would cost to defend the charges. Counsel responded with $40,000 to $50,000. He then asked what he thought the plaintiff would spend in attorney fees and costs to prosecute the case, and he responded about the same. The mediator then pointed out that although the plaintiff might only recover $5,000 to $10,000 in damages, the defendant’s net cost to reach that verdict could be $80,000 to $100,000 in costs and attorney fees. After several caucuses, the mediator suggested the case settle for $30,000, pointing out to the defendant that at that level it would save $50,000 to $70,000 in costs. The case settled for $25,000.

[79]. Case Study: Plaintiff, a farmer, was seriously injured when her tractor was rear-ended by a semi-truck. Plaintiff had entered a four lane separated highway at night traveling 11 miles per hour. The truck was traveling at less than the 65 mile-per-hour speed limit and simply did not see the tractor in time. Although seriously injured, the plaintiff was ticketed and the trucker was not.

In the first plaintiff caucus, counsel expressed concern over the fact that his client did not have a slow moving vehicle sign attached to the rear of the tractor as required by law. He argued, however, that the trucker should have seen the flashing amber lights and the rear red lights. Defendant’s counsel, in the first defense caucus, argued that because it was dark, his client could not see the plaintiff. He argued that the plaintiff was more than 50% at fault and, therefore, could not recover.

In subsequent caucuses, it was developed that the plaintiff was hauling a five-foot bale of hay attached to the rear of the tractor. There are three positions for the bale: on the ground, halfway up, and all the way up. If the bale was all the way up, it blocked the rear lights of the tractor, whereas if it was in the half position then the lights were still visible. Plaintiff stated she put it only halfway up. However, one of the defendant’s engineers examined the tractor after the accident and was able to determine it was in the high position. Plaintiff could not refute this.

In the fourth caucus with the plaintiff, it was developed that there were three large lampposts lighting the intersection where plaintiff turned onto the highway. In other words, the defendant had to have seen the plaintiff when she was crossing onto the highway and turning to drive north. The lamps were barely visible in some photographs taken during the day, but at night they would light up a large portion of the highway. Defendant admitted that this was an added concern. As a result of this new evidence, the insurance adjuster handling the case made calls and put additional money on the table, and the case settled. The case illustrates how evidence can be developed during the caucuses.

[80]. See discussion infra Part VIII.G.

[81]. In discussing the risks with each side, it is far more effective to read from depositions or documents than to summarize them. When a mediator can point out the actual words a party gave in her deposition, which constitutes an admission against interest, it has a far greater impact than just to summarize the point.

[82]. See generally Wilk & Zahar, supra note 13, at 58.

[83].

Date: 2015-01-02; view: 766