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Mediation has proven to
be an effective tool to resolve disputes.
It is so successful, courts now require litigants to mediate
cases. As a result, court
congestion has been significantly relieved and parties can resolve their
claims in a less costly manner than proceeding to trial.
Currently, of all the civil lawsuits filed in King County
Superior Court, less than 4% actually proceed to trial. Likewise, the Federal
District Court recognizes the value of early settlement negotiations and
the use of mediation. The
Federal Court requires mandatory settlement negotiations under Local
Rule 39.1(c) for the Western District of Washington: "In
every civil action designated by the court for mediation under this
rule, the attorneys for all parties to the action, except nominal
parties and stakeholders, shall meet at least once, preferably in
person, and engage in a good faith attempt to negotiate a settlement of
the action. If settlement attempts
fail, the federal local rule requires the parties to select a mediator.
If the parties cannot agree on a mediator, the court will select
a mediator. Once a mediator
is selected, a date for mediation is determined.
All parties, their primary counsel and anyone with settlement
authority, such as an insurance carrier, must attend.
If these persons do not attend, they are subject to sanctions
under Local Rule 39.1(c)(4)(F): "Willful
or negligent failure to attend the mediation conference, or to comply
with this rule or with the directions of the mediator, shall be reported
to the court by the mediator in writing and may result in the imposition
of such sanctions as the court may find appropriate." These federal
provisions illustrate the value of mediation to the court.
Getting all the litigants in the same room increases the chance
to settle a claim. Immediate
resolution of matters result in greater satisfaction to litigants,
reduces legal expenses and reduces court congestion. The actual process of
mediation involves the appointment of a mediator who works with the
parties to find a suitable compromise.
For mediation to work, the parties must be willing to compromise
their positions. Trials can
be uncertain and depend not only on subjective evidentiary rulings but
the make-up and mood of a jury. Litigants
often choose to negotiate a "sure thing" rather then run the
risk of a jury verdict. Mediation was once
viewed as a much more formal process than it is now practiced.
Previously, opening statements were made so all the parties could
hear the strength of each side's case.
Statements by litigants were made to demonstrate their jury
appeal if the matter went to trial. However, contemporary
mediation practices recognizes the most valuable portion of mediation is
"caucusing." The
formalities of an opening statement and litigant statements are
dispensed. The parties are
separated in different rooms and the mediator will speak with each side
privately and confidentially about the strengths and weaknesses of their
case. The parties are free
to discuss their case with the mediator and strategize the best way to
settle the claim. The mediator goes to
the other party and discusses the merits of the case and discloses facts
as authorized. Most mediators will also present research on recent
settlements and verdicts of similar cases as a comparison on the value
of a case. After numerous trips
back and forth, the mediator will typically find a mutually acceptable
settlement or at least narrow the gap between settlement positions close
enough that settlement will likely occur later in the case.
The actual process could take a few hours or a few days. It has become the rare case that proceeds to trial. Our office has found
"clear liability cases" do well in early mediation.
We have mediated and successfully resolved large cases prior to
even filing a complaint. However, in disputes
that require obtaining documents and witness testimony on
liability, a lawsuit must generally be filed first to take
advantage of trial discovery rules.
After at least preliminary discovery has been completed,
mediation can assist in settlement.
If the matter cannot be resolved, additional discovery can be
sought. Bifurcating the
discovery process can save litigation fees and costs if the matter is
resolved in mediation. Mediation is used
primarily in civil litigation. However,
our firm has experience in mediating criminal cases using a judge in
complex federal prosecutions. The
use of a judge makes this form of mediation commonly called a settlement
conference. A settlement conference in a federal case is rare but is
provided under the Local Rules for the United States District Court for
the Western District of Washington.
Based upon the Court's input, the prosecutor may elect to reduce
charges, dismiss counts, or agree to recommend to the court far lesser
penalties. Mediation has become an important part of our legal system. Aoki & Sakamoto carefully assesses each case as to appropriateness of mediation. However, for many complex matters, trial is the only possible means of resolution. We keep our clients informed as to the status of negotiations, case preparation, discovery and recent court opinions that may affect the case, so when we make our recommendation whether to seek settlement or proceed to trial, our clients can make the most knowledgeable decision possible. For additional information on our areas of practice, go to our Practice page.
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