More than 90 percent of the cases in Superior Court eventually settle before or during trial. In the majority, counsel are content to let discovery and dispositive motions play out; they do not focus on settlement until a trial date is imminent. But in some cases, a client may tell his or her counsel in confidence that he or she wants or needs an early resolution of the case. Clients have many reasons for wanting a speedy end to a lawsuit, such as the potential cost of the litigation, a possible merger or sale, bad publicity, business disruption and damage to commercial relationships.
When given this confidential instruction by the client, an attorney can bring about an early resolution of the case through mediation if the other side is already willing or if the attorney can convince opposing counsel to give it a try. Mediation is less costly and quicker than litigation, it is confidential and in the vast majority of cases it results in a settlement. It allows the parties to put the dispute behind them and to avoid an expensive and protracted trial. It may also minimize the anguish of an adverse outcome. As a bonus, even if mediation does not lead to a final resolution of the case, it offers perspective to both sides about the case and prepares them for trial. It may also lay the groundwork for a potential pretrial resolution of the case.
While California requires some Superior Court cases to be mediated at the parties’ expense, that is not the rule here in Massachusetts. Although a Massachusetts Superior Court judge can order the parties to mediate before a volunteer or court-employed mediator, the Court cannot require them to mediate at their own expense. This would be deemed a violation of the parties’ rights to full access to the courts under Article 11 of the Declaration of Rights of the Massachusetts Constitution. (See Venturi v. Venturi, 87 Mass. App. Ct. 190 (2015). See also the Uniform Rules on Dispute Resolution, SJC Rule 1:18.)
The option of mediation is formally raised for the first time in a Massachusetts Superior Court case at the final pretrial conference. Unfortunately, Superior Court Third Amended Standing Order I-88 provides that in an “average track” case, the final pretrial conference is not held for some two-and-a-half years after the case is originally filed. Concomitantly, attorneys’ fees and costs steadily mount. Some judges are experimenting with having the parties called in to consider voluntary early mediation as soon as a case is filed. Initial reports indicate that this procedure is helping to reduce the backlog in those sessions. However, adding a mandate for an early additional hearing for each case is not on the horizon, given that Superior Court judges are already overwhelmed with the trials, hearings and decisions before them.
Here are some of the obstacles that might prevent an early mediation, as well as possible ways to overcome these obstacles when you are urged by your client to get the litigation resolved quickly.
1. Might a Request for Early Mediation Be Construed as Weakness?
Not anymore. This may have been an issue before mediation became prevalent, but now the requirement for attorneys to discuss potential mediation with their clients and each other is embedded in Rule 16, Mass. R. Civ. P., and specifically mandated in Appendix A (9) to Standing Order I-88, which requires that counsel include the following in their joint pre-trial memorandum:
”A certification that counsel for all parties have conferred and discussed the possibility of settlement, and the amenability of the case to mediation or other form of alternative dispute resolution….”
Given the specific requirement of the court that all counsel discuss the amenability of the case to mediation, raising potential mediation with opposing counsel does not signal weakness.
2. Opposing Counsel Is Too Busy to Even Consider Mediation.
There is no question that trial lawyers live exciting but often hectic and exhausting lives. They regularly juggle many cases and have pressing obligations, including upcoming motions, client demands and scheduled trials that may or may not go forward. Dealing with this obstacle is as simple as asking counsel when their schedule will slow down a bit. At that time, you can call to discuss potential mediation in your case either in a given month or at an time prior to trial, such as when interrogatories are first filed or when documents are produced. Do not hesitate to remind counsel that even if the mediation is unsuccessful, it will permit them to learn about your case and help prepare for trial.
3. The Insurance Company Has Insufficient Facts to Consider an Early Mediation.
If the claims adjuster for the insurance company feels your client’s claim is completely meritless, you have a bigger problem on your hands than just arranging an early mediation. But even in a case that has obvious merit, an insurance company will ordinarily not agree to mediation for a case or offer serious money on a claim unless satisfied that it has the information and facts necessary to evaluate the claim. Issues beyond the claim’s validity include its client’s liability, potential comparative negligence and verification of the damages. To overcome this obstacle, ask the insurance company what information it needs and wants. Is it the depositions of key people? Is it business, financial, work, medical or other records, or releases signed by the client? Is it an itemized list of lost sales with explanations? If the insurance company will fairly consider an early mediation, it is in its interest to request this information. If nothing else, it will contribute to a more thorough evaluation of the case for both sides. And if the mediation is not successful, it is not binding, and the litigation can proceed. Even in cases without an insurance adjuster, lack of information may be an obstacle. In all cases, consider asking opposing counsel, “What information do you need to help you and your client participate in settlement talks through mediation?”
4. The Other Party Refuses to Mediate.
In some bitterly contested cases, it is not surprising to have opposing counsel tell you that his or her client adamantly refuses early mediation of the case. Both plaintiffs and defendants can get angry and hurt when they feel they were wronged by a defendant or unfairly sued by a plaintiff. Such a party’s initial reaction is sometimes to use the litigation to "punish" the other side. This means that they will not agree to anything suggested by the other side, even if it might be helpful. As trial lawyers know, however, this anger usually dissipates as time passes, when legal bills keep arriving, the client is cross-examined for hours at a deposition and the litigation drags on. Although a party’s anger can be an initial obstacle, raising the mediation proposal again after some time has passed may well be successful.
5. Opposing Counsel Will Not Even Discuss Mediation.
Sometimes, for whatever reason, and notwithstanding the clear intention of the court that parties consider mediation or some other form of alternative dispute resolution, opposing counsel may refuse to discuss it or otherwise cooperate in litigating the case. Mass. R. Civ. P. 16 (9) states that one of the purposes of a Rule 16 conference is to consider the possibility of settlement. Appendix A, Section F to Standing Order 1-88, provides that the parties may benefit from a Rule 16 conference to address various matters that may aid in resolving a case or reducing the time or expense of litigation. Section F goes on to state that any party may ask the Court for a Rule 16 conference and such requests will be honored if reasonable. When seeking an early mediation, your recourse may be to call the session clerk and ask that a Rule 16 conference be scheduled. Since clerks are invariably interested in reducing a session’s caseload, it would not hurt to express your hope that the judge will encourage mediation during the conference.
In sum, don't give up too easily when your client wants or needs an expedited resolution of a lawsuit. Mediation is the key. Keep trying.