Attorneys often use these terms interchangeably; however, there is a difference. Mediation is a process whereby parties to a dispute agree to utilize the services of a neutral, acceptable to both parties, who in turn facilitates, evaluates, and/or brokers a resolution of the dispute. Any agreement to settle is voluntary. In contrast, a settlement conference is usually conducted after extensive discovery and trial preparation. In the court system a sitting judge is assigned to conduct a settlement conference. Outside the court system, attorneys employ a private neutral to convince the parties to settle. The sitting judge or neutral frequently exerts pressure on lthe parties to resolve the dispute. A mediation my evolve into a settlement conference format particularly when the attorneys ask the mediator to make a “mediator’s recommendation”, a definitive proposal for settlement.
First, the parties to a dispute can retain a neutral long before any lawsuit is filed. By definition, this cannot be accomplished within the court system because there is no lawsuit for a sitting judge to refer to judicial mediation or arbitration. Early negotiations enhance the chances for settlement. Second, private dispute resolution is just that: private. The proceedings are not open to public scrutiny. For example, in trade secret cases, the parties do not want to risk intellectual property information becoming available in the public domain. Third, private judges have the luxury of dealing with one case at a time. By comparison, sitting judges often have upwards of 500 active cases assigned at any one time. The pressures of their law and motion calendars and having to try cases make it difficult for them to find time to conduct meaningful settlement conferences. Fourth, neutrals such as retired trial/appellate justices have considerable experience in evaluating cases and in employing negotiating skills. The purpose of alternative dispute resolution is to resolve disputes short of trial, and hopefully long before the proceedings become contentious and expensive.
Arbitrators and mediators on the court panels are becoming more skilled at their craft. Nevertheless, the attorneys to a dispute are not always able to secure the arbitrator/mediator of their choosing because some are in demand and thus become less available through the court system. Indeed, some have left the panel to practice mediation or arbitration as private neutrals. A private judge usually has the skill, experience and reputation to convince parties to agree to a reasonable settlement proposal.
If you yourself are not convinced a private, independent, experienced neutral is better able to resolve the dispute than any other person in the court system, then you will not be able to convince your own client to retain a private judge. Attitude toward the litigation process is important. The public policy of this state encourages early resolution of disputes, both to save the public from the costs of legal representation and attendant court costs and to lessen the burden on the trial courts. As an attorney, you have an obligation to explore reasonable alternative dispute resolution vehicles available to you and your client. A client is better served by the attorney who minimizes costs and yet reaches an equitable end to the legal conflict.
No. If anything, suggesting that a neutral evaluate or mediate the dispute conveys a sense a confidence you have in your client's cause. It is also a smart idea to get an early reading on the issues before investing a lot of additional time and money in the case.
When parties make a deposit for the neutral’s services, they have invested in a settlement process. Accordingly, the chances of resolution are enhanced. Further, the neutral should not have to worry whether the statements made or positions taken in sessions with the parties and their attorneys will somehow jeopardize the collection of the fee for services.
You and your client are paying for expert services. Many expert witnesses charge even more than private judges. What the private judge provides is integrity, knowledge and experience. The private judge's fees are competitive and reasonable.
Yes. The neutral must ensure that the agreement is reduced to writing and signed by the attorneys and their clients. The agreement must be specific enough to be enforceable in accord with the principles of the equitable doctrine of specific performance. The neutral should memorialize the agreement immediately before "buyer's remorse" sets in. C.C.P. section 664.6, applies to those agreements so reduced to writing emanating from lawsuits already in the court system. Arbitrator's awards are enforced by a Petition filed in a court of law.
The client, or the representative of the client with complete authority to settle, must be present. If the client’s ultimate decision to settle a case is dependent on the advice or view of another person (for example: spouse, investment advisor, or trusted friend), that person should also attend the session. The insurance adjuster who has working knowledge of the case and the authority to settle must also be present On occasion, the carrier may not have a local representative and, with the consent of the private judge, may be on telephone standby.