 You're watching FJTN, the Federal Judicial Television Network. Potentially any case is a good candidate for ADR. It really depends less on the nature of the case than it does on the interest of the parties. For me, it's a sliding scale of time and the resources in dispute. The ADR skill set of mediation and problem solving and issue identification is something we use in discovery matters and in summary judgment. Our philosophy is that the best way to get a case settled is to get the parties talking about settlement before their positions have hardened and before they have expended all of the discretionary dollars on preparing for the trial and discovery. Live from the Federal Judicial Center Studios in Washington, D.C. Here's your host, Bob Began. We're delighted you've joined us for this program. We're going to be talking about case management and mediation, a subject that wouldn't have gotten much attention only a few years ago, but for a number of reasons, statutory requirements, for example, and the rapid development of ADR in private legal practices. Most federal district courts and many bankruptcy courts have adopted local rules authorizing the use of ADR in civil cases. So today, more judges are asking questions about how they can effectively incorporate mediation into their management of civil cases. Both judges and attorneys, in fact mediators too, know the frustration of hearing that mediation was not effective in a case because the case wasn't right for mediation. Could the judge or parties have seen this coming? How does a judge select appropriate cases? When is a case ripe for mediation? We're going to talk with judges, attorneys, and mediators about these matters. Our first three guests are federal judges. A bit later in the program, we'll talk with two attorneys, mediator and a magistrate judge mediator. Let me now turn to my colleague, Donna Steenstra, senior researcher at the Federal Judicial Center, to introduce the members of the panels and moderate the program. Thanks, Bob. It's great to have you with us for this discussion of case management and mediation. We have a wonderful group of judges, attorneys, and mediators here in our studio to share their experiences and views with you. We'll begin by talking with three judges, and I'd like to introduce them to you now. To my right is Judge Vanessa Gilmore from the Southern District of Texas, sitting in Houston. Judge Gilmore has been on that bench for nine years, and has been an active user of the court's mediation program. To my left is Judge Robert Levy. Judge Levy is a magistrate judge in the Eastern District of New York and has been on that bench for eight years, sitting in New York City. For the past three years, Judge Levy has overseen his court's arbitration and mediation programs. Because of the heavy caseload in his district, it's not unusual for Judge Levy to conduct as many as 50 to 60 case management conferences in a given week, and he frequently refers cases to mediation. Our third guest is Judge Cecilia Morris, bankruptcy judge from the Southern District of New York, who was appointed in 2000 and sits in Poughkeepsie. Judge Morris has had a long interest in mediation, serving as a mediator for the Southern District of New York and for the NASDA, then creating the mediation program for the Southern District's bankruptcy court after she joined that court. I'd like to welcome all of you to the program. It's really great to have you here today. I'd like to begin by talking a little bit about the way you use mediation in your judicial case management. I have heard it said, I'm sure we've all heard it said, that mediation is just another case management tool. Do you agree with that, Judge Gilmour? And if so, how do you use that tool? It is a good case management tool. It gives you another reason and opportunity to continue to talk to the lawyers about an efficient and cost-effective method of resolving the disputes between the parties. Judge Morris, do you agree with that statement? Oh, absolutely. I think every judicial officer has a goal in mind of helping the parties to resolve their disputes. And mediation means helping the parties together to resolve to come to the best resolution of their dispute. So it is a wonderful tool that can be used in any time and practically any case. Judge Levy. In preparing for this presentation, I spoke to some of my colleagues who were questioning what's the difference between a settlement conference and a mediation, especially one who said he never refers cases to mediation. I thought about that. I think it is an ill-defined boundary, but I think one of the differences is that a mediation is typically before someone who will not be the trial judge. It also takes a longer time when a mediator should be prepared to have two or three days of mediation, if necessary, and the parties are always present. I have reviewed many of the court's local rules, and I have noticed that most of the courts leave the discretion about how to use mediation to the judge. There are, in fact, a few courts that mandatorily refer certain types of cases to mediation or to arbitration, but most leave the discretion on how to use and whether to use mediation to the judge. That leaves the selection of cases to the judge. Would you describe Judge Levy, what process you use for identifying cases? What information do you have in front of you, and how do you use it? Well, I use the initial case management conference, the Rule 16 conference. I have the complaint. I ask the parties to explain the claims and defenses, and then I try to ascertain what obstacles there are to settlement and get the parties thinking about that. So what I do is try to see if this case has the right chemistry for mediation and if it's the right time. So you're making an assessment pretty early in the case then? Immediately. Immediately. Judge Morris, is that your practice as well? I think you make an assessment immediately, but more than likely it's not until later in the case that I might send it to mediation, and by that I'm getting the flavor of the case. I'm trying to find out, and same thing, I have case conferences, find out in the case conference what is the flavor of this case. Are the attorneys getting along? Is discovery going smoothly? I don't add the layer of mediation because it adds a layer of cost, and by cost I don't just mean dollar cost of a mediator, but the cost of the parties of having to meet until I see such time as it might make a resolution or that things aren't moving, discovery isn't moving forward, or they're not discussing what the real issues in the case are. And I get that through the flavor of these case conferences. So you're doing it a bit later in the case? A bit later in the case, but I think the assessment begins at the very beginning, just as Judge Levy said. Early on in the court's use of mediation, there was, and I should say actually in the private practice use of mediation, there was an effort to identify categories of cases. If we could just come up with sort of a rule of thumb to identify those cases that are appropriate, it would make that referral process simpler. Judge Gilmour, I want to ask you what you consider a good case and whether you think of the identification of cases that way. Are there types, are there case types, are there categories, or how do you make the identification? I think that almost any type of case could be appropriate for mediation. I've had particular success with mediating, for instance, complex security litigation cases, some personal injury cases, after sufficient discovery has been done, school ADEA cases, and not too often employment litigation, but occasionally some types of employment litigation as well. I think that once you make a determination, initial determination, that the case might be appropriate for mediation, which I also do at the Rule 16 Schedule and Conference. You have to make an assessment of not just the factual and legal issues, but also the emotional issues that are involved with respect to the particular litigants to help you in making an assessment about whether or not the case could be appropriate for mediation. I think you have to take all three of those things into consideration in terms of making that final decision. Does that sound familiar to you, Judge Gilmour? Very familiar. Sometimes lawyers tell me I'd like to go to mediation. Other times there's an ongoing relationship that makes mediation especially appropriate. Sometimes there are creative solutions that are needed in a particular case, or most often just a breakdown in communications that mediation could help mend. So what I hear you both saying is that you don't think about it in terms of the nature of suit, necessarily, but you think about it in terms of some other kinds of characteristics of the case. I think that would be a fair assessment. Absolutely. How do you weigh the party resources into this decision? If you have parties, for example, who don't have a great deal of resources and you're thinking of referring them to the legal process, how do you take that into consideration in making the referral? That can be a difficult issue. It's particularly a difficult issue when you have a procé. And sometimes, well, our court has an experimental program now involving mediation for procés where we appoint advocates to help the procé with the mediation. But typically, I ask the parties what will the impact of mediation be? I actually did want to ask about two particular types of cases when making that decision about whether to refer a case. And one is the procé cases. These are a particular challenge, I think, to court ADR programs. They seem in some ways the appropriate case because the parties need some additional help. But on the other hand, they can put a considerable burden on the mediator in the court to refer procé cases. Judge Morris, I know actually you've mediated procé cases. I have mediated procé cases. And it puts the mediator in a very difficult position because sometimes even in asking the questions, you're helping them litigate their case. And a mediator is not there to help with the litigation. Tactics, it's there to help resolve and help the parties come to the best resolution of their problems and their difficulties. I think the Eastern District's experimental program is excellent. The idea of having a pro bono attorney with the procé litigant is exciting. To just send one in, though, without it is very difficult. And as you said, I have mediated them. And they are difficult. Do you refer them now? No. Not to procé? No. Could you tell us a little bit more, Judge Levy, about this program you've adopted in the Eastern District? I think it's something that many courts might be interested in because I've heard a lot of questions from the courts about do you have any advice about referring procé to mediation? Well, we have a magistrate judge who is focused entirely on procé cases. She sees all the procé cases. She assesses the case for mediation. And then we have a list of attorneys who are willing to act as advocates for mediation. They're there only for the mediation, but they're also there to represent and give comfort to the procé, help that person formulate the issues in the case and understand how to work the process. So the procé doesn't put undue pressure on the mediator for that kind of assistance, and therefore risking the neutrality of the mediator. The other type of case I'd like to ask about is complex litigation. I know, Judge Morris, you have a lot of big complex bankruptcy cases. Are these suitable for mediation? Oh, I think they're absolutely right for mediation. One thing in the big complex cases, and particularly one area, it's across border insolvencies where you have other courts and other venues where other actions are going on and to get a mediator that can bring that all together so everybody is on the same page and simply talking. It may not totally resolve an issue, but it could certainly narrow the issues down to where some resolution could be made. That's one prime example. The other prime example is even when it's not across border, when there are other courts involved and these big cases have state courts involved, they have other federal courts involved, it's just many complicated issues and getting this under one umbrella where people are all sitting and talking and discussing and moving toward a resolution. You have more than enough complex cases in the Southern District of Texas as well, Judge Gilmour. Yes, and mediation is a very good tool to use in complex litigation. As Judge Morris was saying, sometimes you send them to mediation in very complex cases, not for the purpose of trying to seek the case, but simply trying to narrow the issues that you want to be left with for trial of the case. That still is a very helpful use of the mediation process. Even if mediation isn't leading to settlement, it has a positive effect in those cases. It can always have a positive effect in those cases if you can use it to resolve some of the issues in dispute. One of the things in the big, sorry, in the big complex litigations is the case is actually bleeding money. So to get discovery shortened are to have three entities that are seeking the same discovery join in making one discovery demand. Mediation is just an incredible tool to help have those things happen. I'd like to second that idea and also put in a pitch for what seems to be the hopeless, unsettled case. The case where communications have broken down where the parties are barraging the court with a flurry of discovery motions. I'll bring you over even the most innocuous document request. That case sometimes is ripe for mediation to help change the mindset and reestablish communications. Digilevi, I understand that in your district the mediators aren't paid, that they serve the court pro bono. How do you convince them to take these cases and how do you convince them to take the complex case in particular? Well, I'm constantly surprised that people are willing to do that kind of mediation pro bono. And yours is not the only court we might add where this happens, so tell us why you think they are willing to do this. Well, I think number one, many lawyers are public service oriented. They feel it's a service to the court and to the justice system. Number two, they're willing to get themselves out in the community to get some experience and it looks good on their resumes. But we have many experienced mediators who are willing to be on the list and it must be part of the public service effort. I'd like to ask about when you're working with an attorney or the attorneys and you're in chambers and you're talking with them about the possible use of mediation and you're getting some resistance from them because your courts do not mandatorily and automatically refer cases to mediation. So you're working with the parties, they have some say in this and you're getting resistance and the attorneys ought to be referred to mediation. Judge Gilmour, what kind of objections do you hear from the attorneys and what do you do with that? Generally speaking, the kind of objection you hear comes at the Rule 16 Scheduling Conference when you're inquiring about the possibility of mediation and the parties feel that they haven't had sufficient discovery yet to be able to make a real assessment about whether the case could settle at mediation. I think that is a legitimate concern by the attorneys. If they don't feel that they have that they're not going to be prepared for mediation and if a lawyer objects at the beginning of the case from being forced to go to mediation at that point in time I would go along with whatever their assessment was at the beginning of the case. Later in the case, the kinds of objections that you get usually come from the lawyer's experience with their own client and they're making an emotional assessment. They've assessed the factual and legal issues and then they're assessing the emotional willingness of their client to participate in the mediation process and whether or not they think it would be completely futile to do so. I would never actually force somebody to mediation that didn't think that the process would actually be beneficial and actually lead to a resolution of the case because if you don't have some sort of agreement going in I think that it's not a process that's going to be eventually very beneficial to go to mediation that absolutely objective. Judge Gilmour. I think Judge Gilmour touched on the thing that I try to lead the lawyers and talk to the lawyers about and that is it's a process. So when they have resistance to it we talk about it's a process and going through the process and that it is an exercise and that their clients and they might benefit from going through the process and once I've described it then they tend to go through the process and we all also know that we're federal judges and once a federal judge says to you don't you think mediation would be a good way to go by and large you get sign-ons pretty quickly. I think I try to do it a little more carefully than that so that it isn't just a the judge has mandated we do it so we're going to go sit down and just not talk but we're going to go. I do talk about the process and I also ask the questions of without disclosing anything you're doing have you identified what separates you maybe a mediator can help identify what separates you. So I've heard Judge Gilmour say that she does not refer the parties absolutely object to it and I've heard you say that the power of your office can sometimes persuade parties they should participate in mediation. It's somewhat the same though at the end even if you find somebody who's a little bit resistant you can still say don't you think that this would be helpful to you and you do get some buy-in sometimes just by making that suggestion. Absolutely. And I'm going to ask Judge Levy if he has ever ordered parties to mediation over the objection of the parties. No I never have but I've noticed sometimes that lawyers are afraid that if I send the case to mediation that I'll just back out of the case and disappear and they need to have a firm hand they want to be sure that there's always a judge there paying attention to their case the other thing that seems to be important is as I've said Judge Morrissey is to educate the lawyers about the mediation process they learn in law school about litigation but they really don't know about mediation in the same way at least it's slow the learning curve is slow so it's important for the judge to encourage them and tell them what the process is about and how it could help them. And do you find that once an attorney has been in a mediation process they're more receptive to it the next time and the next time and if our mediator has been good yes. Yes of course that's always an important factor in it. Mediation of course is not the only form of ADR and it's not the only form of settlement assistance available to attorneys and through the courts when you're making that initial assessment Judge Gilmore about the suitability of the case for mediation are you considering other types of ADR as well or even perhaps referring the case to another judge for a settlement conference. We almost always use the standard mediation process as the form of alternative dispute resolution that we most suggest or refer cases to very often however cases come in these days with arbitration agreements or standard arbitration clauses and contracts and so those cases aren't ones that we get to involved in making determination about the method of alternative dispute resolution they just go to arbitration as part of their agreement but mediation is really the primary tool that we use. We don't really use court court run settlement conferences or conferences with the magistrates that much in the southern district of Texas because the judges are busy and are in trial most of the time and the culture in our community is for people to employ paid mediators and to pay those mediators for their service of helping them with the resolution of the case. Have you found that there are certain types of cases or circumstances where in fact having somebody who has the robe is more useful than referring the case to mediation? Yes, there are some cases where the lawyers simply say look judge we want you to tell us who's right and who's wrong or tell us what damages are worth and sometimes I tell them look this is a different kind of process from what you're thinking about. If you want an evaluation from me that's one thing but you have a lot more freedom in mediation to craft whatever you want and I tell them that you can have any kind of mediation that you want you can have a summary jury trial you can have a high-low arbitration we'll create this process in any way you want it to be you tell us how you want to do it and they almost never take me up on it they always want the traditional ways of doing things either a judge's evaluation, a standard arbitration or mediation. I'd like to take a moment now to check with my colleague Bob Fagan because I understand that some faxes have come in with some questions for the panel. Thanks Donna in fact yes we receive two faxes and we can take them each separately one from Joe Barrett from the Middle District of Pennsylvania. Is there any reliable data to suggest that certain case types are better suited than others for mandatory mediation? Donna? The question is whether any types of cases are more suitable than others for mandatory referral to mediation. Judge Gilmour, I have not seen any data along those lines suggesting that a particular type of case is more suitable for mandatory mediation as we discussed earlier we don't make decisions to generally speaking to have mandatory mediation for any cases we don't have a local rule to that effect maybe there is some data that suggests that but that has not been my experience generally. Are there any types of cases or circumstances that would compel you to order or to compel the parties to participate in mediation? As we talked about earlier there are particularly in the area of securities litigation there are some cases that are so complex that you really, really need the parties to mediate particularly because there are so many lawyers and it's just going to be more helpful for the parties, the litigants everybody to get together and have some serious face to face discussions and there really isn't a forum or opportunity to do that if they're not sitting at a table discussing the resolution, the ultimate resolution of the case. Bob, I understand that there's a second fax would you read us that question? Sure, thanks Donna. We received another fax from Mary Jo Shoemaker who's the ADR administrator from the western district of Michigan and here it is. If your court's philosophy is to accomplish ADR early what types of situations might legitimately delay the process? The addition of parties? Bankruptcy of a party? Serious illness or death of a party? Other. That question is a great segue actually for us into the next topic which you're going to take up which is the timing of the mediation session but let's answer Mary Jo's question first what would prompt you to delay the mediation in a case? Judge Gillman. I'll let you do it then. Go ahead Judge Gillman. Things like the filing of motions for summary judgment potentially if there is a motion for summary judgment pending sometimes the parties want you to work on that motion and give you the answer to the issues that have been raised in that motion before they go to mediation so they can figure out who has the advantage on that particular issue but I always make it a point in cases that we know that we are going to or have already referred to mediation to ask the parties do they want me to go ahead and work on the motion for summary judgment before they finish the mediation and the outcome for me has been about 50-50, 50% of the time they'll say no don't work on it now it'll be a waste of your time let us do this mediation first you may not ever have to do it and the other half of the time they say it's less in terms of figuring out whether or not we can resolve our case so I always ask Has that been your experience as well? Absolutely and it's that summary judgment motion hanging out there that is usually the one that they want me to slow down and before they go to mediation for me to decide on that and I do the same thing we go through a litany of questions are there no factual disputes are you sure have you have you discussed this do you what have you done with your opposing party settlement negotiations and so we go through the same sort of questions in that case conference before honestly summary judgments are hard long work you want to make sure you do it and do it carefully so if they can resolve it you also are saving yourself time it's a mediation is a tool and that's one of the tools where it really helps the judge but frankly once the parties have spent the money on the summary judgment motion it's very hard to pull it back the parties want the return on their investment so I find that the best way to deal with that is through the premotion conference to try to give the parties a sense of where I'm leading or if it's the district judges case where he or she is leading sometimes that helps and it's enough to get the parties to negotiate because they fear an adverse decision now's the time to settle because this offer won't be on the table in two months Do you ever suggest to the parties that they not file that motion that they wait and hold the mediation before they file their summary judgment on the motion? Yes but I find that it's often important to have the clients there when we have that discussion because sometimes the lawyers and the clients haven't fully communicated about the issue and the clients may be driving the lawyers in a way the lawyer feels that the lawyer can't tactfully resist and that's another thing in terms of the court intervening or getting involved in the timing of the mediation process for me if the lawyers have given an indication that the case is not appropriate for mediation or right for mediation at the inception of the case I will set a status conference not all the way at the end of the discovery process when it's time for motions but maybe part of the way through the discovery process by discussing with the lawyers how much time do you really think you need before you'll be able to at least make some evaluation of the case and if we have a discovery process that's going to go on for maybe four or five months we'll pick a point maybe midway through that discovery process to come back to me so that we can have another discussion about whether not the case is appropriate or right for mediation then it's before they've invested as much time and money as they would of when they have already filed their motion for summary judgment discussions about timing of mediation usually involve consideration of two things discovery and the summary judgment motion and when to hold that mediation session in relationship to either of those two things discovery or the summary judgment motion again early on when the courts were first starting to use mediation there was I think a consensus that mediation would not be successful until discovery had been complete I think that thinking about that is changing but I wondered if you would give me your views Judge Levy about the timing the relationship between the mediation session and the completion of the discovery process well I think it's a little like deciding which case is appropriate for mediation it's a case by case analysis but in New York City the City of New York always tells the court let's try to see if we can settle this case now before we've run up the attorney's fees and the discovery costs particularly in cases where there's fee shifting where the prevailing party will recover fees the defendants would much rather pay the money in settlement than in attorney's fees Judge Morris are your considerations different in bankruptcy when do you want to see that mediation session held in the case? I think the considerations are the same I think I might approach it just a little bit differently and that is if I see the parties are going through discovery very smoothly and that they are understanding through my case conferences understanding what the issues are some of the best mediators negotiators are lawyers and I don't want to upset a balance that may be moving forward because by and large most everything we have settles before trial so you want to make sure that it is moving and that they are moving toward discovery that they are moving toward some kind of resolution or they are narrowing the issues and if they're doing that without a mediator I will not upset that balance I find there are certain times though the mediator will as you said bring in the parties so the parties understand what's going on that I may not have in these case conferences and that's where you want a mediator but I think a mediator can go in at any time that the case needs to progress to a resolution I think judging is an art when descended to mediation is an art and the timing is not scientific before discovery before the summary judgment it's the art of knowing the case and knowing the flavor of the case so two of the early efforts and admittedly when mediation was very new to the courts the effort to identify categories of cases and the effort to identify a time when it was right to send cases to mediation experience is now shown as though it's a bit futile to try to do that like everything else in judging this involves judgment that's why they call it judging what that requires then is that the judge be actively involved in the case because if it's an art the judge needs to be feeling the pulse of the case constantly and whether it's through frequent case conferences or status reports or whatever you the judge have to know if the obstacles to settlement have been reduced and what it also emphasizes is the importance of judges understanding the mediation process and other ADR processes as well but understanding that procedure well enough to know when it will be useful in the case I wanted to ask actually a question about the communications between you and the mediator during the mediation process somebody is going to be telling you that there's a need to wait perhaps on deciding that summary judgment motion or that it is time now to hold the mediation session or that more mediation sessions are needed who makes that communication to you Judge Gilmour? it's generally speaking it is not appropriate for the mediator to have any contact with the court the rare exception is potentially when a mediation has been in progress and the parties just need more time and it's going to interfere with the court's current scheduling order I have on occasion had a mediator just write me a note to say we are really making good process progress here we're still in the process of conducting the mediation we understand we're running up against the scheduling deadline may the parties have a little bit of an extension there just so that we can continue the process just a logistical question other than that it's only appropriate for a mediator to communicate to the court that the case is settled or not settled and that's it, no further details about the case by and large the attorneys communicate with me, not the mediator and I continue the regular scheduled case conferences we have everything is still teeing up for trial the pretrial motions and hearings are still going on and it would be the parties not the parties, but the attorneys that are coming to me and saying we've been to mediation, we want to go again can we postpone this can we come back in two months instead of a month or six months because we are dealing with whatever and basically then it becomes the question that you ask without disclosing your settlement negotiations have you pinpointed the issues are you moving forward on those issues and you ask a few questions like that and if you think that the legitimate answer is that they are, then of course they can get the postponement but it's the parties that are normally talking to me and how are other kinds of problems communicated to you during the mediation process to you for example Judge Levy if the mediator is having a problem with the parties or the parties are having a problem with the mediator how is that communicated to you well I wear two hats, if I'm the referring judge how is that communicated to me or it should not be communicated to me we have an ADR administrator who debriefs the parties and hears the problems we're toying with the idea of getting an ADR judge to resolve these issues but in my other capacity as the overseer the judge who oversees mediation I do hear these problems I hear that a party has shown up for mediation when the mediator required the client to be there I hear of ethical violations and we try to keep a wall between the referring judge and the mediation I would love to spend a lot more time talking about the problems that arise the ethical problems in particular and how courts can handle those but unfortunately we've run out of time already thank you very much it's really been a terrific conversation and I I wish we could continue but we need to go now to our next panel a panel of mediators and attorneys we're going to bring those guests into the studio now and while we do here are some comments from other judges around the country thanks to all of you if the parties have elected to use mediation they know it's going to be done early and therefore it's going to be done before summary judgments are even filed let alone resolved there are cases where as the mediation process goes along the parties working with the mediator conclude that there has to be a special decision on one aspect or the other of the case and in that instance the mediators have the authority to slow down or adjourn the mediation until they get a decision from the judge on a particular issue that actually happens in the rare exception rather than the norm there is a close relationship between summary judgment motions and ADR but that relationship goes both ways in some cases it's very clear from the preference of the lawyers that they want a decision primarily the defendant wants a decision on the summary judgment motion before proceeding to ADR in other cases the lawyers are willing and sometimes very anxious to use the uncertainty of the outcome of that motion as an impetus for settlement discussions there's some incentive for both sides to use that uncertainty to generate discussions about settlement our court uses magistrate judges for mediators because we've had a lot of training and experience the bar expects it when we started our more formalized mediation program there was no private pay mediation in our community we're fairly small and it was the court or nothing now there is a parallel of private pay and actually government service mediation programs that are available at lower no cost but even in light of that the parties have a lot of comfort level in using the court services I think that mediation can be your silver bullet in case management but it's got to be a part of your overall case management mediation works and is taken seriously by parties and counsel when it's part of an overall scheduling order that the court set to adhere to itself and to require the parties to adhere to mediation is just set in off to itself without being on a track that is otherwise going to lead to disposition and I think it's not very effective as part of the rule 16 order they have to check a box saying when they would like to talk about mediation or a settlement conference and then toward the end of the case in about the last four months of its life we do another order telling them that they must have a personal conference and then file a status report letting us know whether they're going to take care of settlement discussions on their own or they want a court set mediation or settlement conference we found there are three principal advantages to using a panel of attorneys first of all, mediation can take a lot of time and it frees up an enormous amount of magistrate judge time if we use a panel of lawyers it's hard for any judicial officer to divorce themselves completely from that role as a judge when they're meeting in the capacity of a mediator so that helps resolve that issue and then finally we found that even though we didn't have an established mediation system in either the federal or state court system in Michigan by recruiting and training a qualified group of mediators they've become the biggest proponents of the system then among all of their peers and that's helped us enormously in establishing and promoting the system welcome back to this program on case management and mediation we've brought three new panelists into the studio and asked them to reflect on the same questions we've just been discussing with the judges I'd like to introduce them now to my right is magistrate judge Susan Gavi a magistrate judge in the district of Maryland Judge Gavi has been on that bench since 1996 and in that position has conducted over 300 mediations for her court she also serves as faculty for the federal judicial centers seminar on mediation for federal judges to my left is John Muth partner with the firm Miller, Johnson, Snell and Kamiski in Grand Rapids, Michigan Mr. Muth is a mediator on the panel of the western district of Michigan and has mediated scores of cases in the district he's also an active litigator and mediator in the private sector specializing in complex commercial disputes altogether Mr. Muth has mediated over 200 cases and next to Mr. Muth is Carol Elder Bruce partner with the firm Ty, Patton, Armstrong and Teasdale in Washington D.C Ms. Bruce has represented both plaintiffs and defendants in mediations before local courts and has been a party plaintiff herself in a mediation with the D.C government legal times has named Ms. Bruce one of the top 20 litigation counsel in D.C congratulations and welcome to all of you pleased to have you here all of the panelists like you have had the benefit of hearing the previous discussion among the judges and undoubtedly will have some comments on what they've heard we are going to be talking about what we've heard discussed already and I'd like to begin by asking you as I did the judges how you incorporate mediation into your routine litigation practice Carol I'd like to start with you how do you use mediation in your practice well I'll speak as a plaintiff's counsel now and saying that I regard mediation as just another opportunity to resolve a conflict that brought my client to me in the first place when a client calls a case in court usually if they're my client always they have tried to resolve the conflict before filing the complaining court and the mediation process in our federal district court here in Washington is such that at the first meet and confer that we have under rule 16.3 our local rule we have to discuss mediation the prospects of mediation whether the clients fully understand the process etc etc and I use that as an opportunity with my opposing counsel to try to get discussions going if they haven't already on settling the case and I don't look at it as a sign of weakness in doing that instead I look at it as a sign of strength almost as when I was a federal prosecutor saying this is your best opportunity to get out of this case at the lowest cost and let's sit down with a neutral third party and try to settle this case John and Carol both of you litigate in districts where you know that your case might be referred to mediation and you have the opportunity Carol you've described already to sit with the judge in the rule 16 conference and discuss what's going to happen with the case as I believe you do as well John what do you do in that conference when you're talking with the judge how do you work with the judge to determine what's the appropriate use of mediation in the case with you John well I start thinking about mediation and I start talking to my client about mediation well before I show up at a rule 16 conference I know we like to think of ourselves as trial lawyers or litigators and maybe it's the function of having gotten older but I think of myself more as a problem solver or a dispute resolution lawyer as opposed to a trial lawyer the fact of the matter is we spend inordinate amounts of time and obscene amounts of money preparing for an event that only rarely takes place in our professional careers that is a federal court jury trial and so I look at mediation as being on the other end of the spectrum of a trial the trial being the last resort and mediation being the first resort Carol what do you do when you're sitting there having that conversation with the judge and you think the judge is just mistaken in wanting or believing or suggesting that the case would be a good case for mediation well in our district we actually don't have a lengthy discussion at the rule 16 conference about mediation it is raised as one of the many issues that are raised or many matters that are raised at the rule 16 conference but and by and large in my experience here in Washington press the issue they will bring it up, ask if the parties have met and conferred about the potential for mediation ask about the timing if they would like to do it now or await the end of discovery but I've never had a situation where a judge has interjected himself or herself into the case at that early stage to insist that this is something that ought to be pursued and again I think in part in large part maybe entirely that's because the judges respect the fact that this is an early step in the case that it is a bit presumptuous at least would be perceived as presumptuous by a plaintiff who feels they have a right of access to their courts to be being pushed back out the door of the courtroom by the judge so I think the judges are very respectful of the person's right to file a complaint through counsel suggest and decide when it's best to go to mediation then who usually takes the initiative ultimately in making the referral to mediation do you request it or is it something the judge raises my experience we usually get to a point in the case where it's assumed that after discovery there will be a mediation period and if you want it earlier then you can request it and that's how it's done that would be at the apart in those say cases it's a little different I've represented prosa plaintiffs where judges have asked me to represent them for mediation purposes only I listened to the prior panel on prosa and I would say that in our district I think we have a very successful way of managing prosa matters with mediation and you get the counsel appointed for mediation purposes only so the litigant has the benefit of the counsel and evaluating their case and going into that mediation process I might say that in our district the judges are very proactive on dealing with the subject of mediation of the rule 16 conference it's something that has taken up very early and strongly encouraged and the referral however is not made at that point may very well be in my mediation practice I mediate disputes that haven't been filed as a case anywhere yet but are on the verge of being filed I mediate cases in the state court that don't even have things as formal as a rule 16 conference but where the parties decide to do it before they do any discovery I mediate in federal court immediately after the rule 16 conference and before any discovery so my view is as long as the other factors are present that suggest to you that the mediation is likely to be successful the earlier the better you've heard the judges say or you've heard them describe the case as they consider to be suitable for mediation and in fact almost every case is apparently suitable for mediation Carol from an attorney's perspective what kind of case do you think makes a good candidate for mediation I think it's less a function of the category of case the nature of the attorneys and the clients and what the goals are of the plaintiff I can tell you what cases would not be I won't say good candidates for mediation so much as ones where it would be difficult to have a successful final mediation where there's actually a settlement and from that would be cases in which a defense attorney is working for a defense cost from insurance company in the MedMal case where they have an inattentive client a trustable client that is not pressing the attorney to come to some resolution in the case and where they are quite literally running the meter maybe legions of associates working on a case I found that those are very difficult cases to actually resolve early that instead we may end up in mediation after discovery and after much money has been spent and time has taken in the case from the plaintiff's perspective the clients who are not good candidates for a final resolution of the case through mediation would be plaintiffs who are still angry that they haven't adopted the old saw of don't get mad, get even bring your case and just make this a question of seeking justice but they still are emotionally invested in what happened to them as well that maybe they should be but the attorney's job is to channel that energy so that it's no longer just anger and it's more a focus on how to resolve the matter because it's gonna come to resolution someday and the clients again who are least likely to be the benefit for mediation at least early on in the process are those that are still angry who have vilified the opponent and are not willing to listen to them yet and who also happen to think their attorneys are the best doggone attorneys in the world who will win the day in court and so there's no need to settle or to discuss taking anything less than all that they're entitled to those are very difficult situations and even though mediation may not come to a final resolution I think even in those cases those are candidates for the process so you go in and the client will then see that oh there is an opposing counsel who will be questioning me at trial these matters that my counsel has told me are difficult questions of law and difficult factual situations this attorney's gonna figure what those are and it's gonna cross examine me and it's not just an abstract problem it's real so it's a good process Judge Carver you are on the other side of this process you are the recipient of the cases that have been referred and in your court many of the cases are referred to the magistrate judges in particular for mediation from your perspective what kinds of cases are most suitable and not suitable for mediation well I am such a fan of mediation I haven't met a case yet that I didn't think wasn't suitable for mediation if it wasn't going to be successful at least it moves the case it changes the case it narrows the case well when you were talking when Carol was talking about the case where an individual still very much has invested in it emotionally to me those are tremendously good cases particularly for judge hosted mediation because they come in people like that whether it's a wrongful death action or a med mal they come into the courthouse they come into I don't hold my cases my mediation is usually in the courtroom but they come into a judge's chambers there is the dignity and solemnity of the process and they many times get their so called they in court what they really need having someone dispassious individual listen to their case and hear them out for that reason mediation is superb I will have a public session as all of us do and then I'll have a private opportunity to speak to the individual and that individual can tell me all the irrelevant things to their case that are very important to them so those cases I think are very important wrongful death or med mal those are important in good mediation cases I agree that there are some cases that maybe can't be settled in a single mediation session you may need to have a little bit of discovery you may need the lawyer to do his or her thing to with the client sort of get excited about the case discover the case and then find out it's not everything we all hoped it to be and it's at that moment sometimes it's best to come to mediation maybe a half way through discovery that timing is often the best I think for cases that are not already known to each other but some employment cases can come very quickly for example if there's been, if the employer has investigated in the EOC process but not had a true mediation they should know so there are cases that enough facts have been exchanged they can come just like that I think Mr. Mayor if you too mediate cases and you probably have received some that didn't seem quite ready or quite the right case for mediation what do you do in that situation well what I found is that my initial impression of readiness is often wrong the cases that I have sometimes felt should be the easiest to mediate have been the most difficult on many occasions I've had lawyers and clients walk out at the end of the day saying to me we never thought we'd get this except we never thought we could possibly do it and yet it happened I think you have to get into the process really to know whether it's a case that's appropriate at that moment I think any case is appropriate now we do a fair amount of sequential mediation I mean as a mediator I don't give up just because at the end of the day we don't have a settlement we turn the attention to process what we need every dispute I think has a nucleus to it and one of the things the mediator is capable of doing through the course of a long day talking to people is to help identify that nucleus it may be emotional it may be informational it may be legal it may be that there's some other agenda that somebody is trying to push in using this case as a vehicle for that but very quickly you find out what that is and you try to help the parties focus on what that nucleus is and help them devise ways to resolve it it may be you need two depositions it may mean that emotion has to be heard it may mean that somebody needs a chance to vent and they need to let out the emotional component we find a way to do that constructively in a mediation process and so I think any case is right and you often don't know until you're done what is the added value here Judge Garvey for the judge you as a mediator John as a mediator are doing something for these cases that the judges aren't doing the judges aren't doing it because I actually do my mediation in my own cases when they're jury cases and that's because I already know the case and I'm on top of it and I don't have to ask one of my colleagues to reinvent the wheel so to speak the added value of a judge I walk in with credibility as I say I only have credibility to lose with the parties and so I think I'm very favorite I have an advantage over John because I don't wear the robe they assume that I do I have these cases I have that experience so I come with that R of impartiality that R of credibility that R of experience so I do think and I'm finding that judges district court judges who could simply send out all their settlement work or their mediation but now beginning to take an interest in doing it themselves because they see it as a problem it's another technique of doing that but isn't it a very time consuming process yes it is and I think John does the same thing I do I allow a whole day mostly I try to do that and then I will frequently have a second session or follow up phone calls indeed it is very time consuming and I certainly respect if the parties don't want me to mediate a case that I'm going to preside over because some lawyers aren't comfortable I mean most lawyers are delighted that I have that interest and I'm willing to make time on my calendar to help them resolve the cases efficiently and inexpensively as possible I want to ask about two particular case types as I did with the judge panel the first is the pro se cases have you mediated pro se cases do you think you have a special advantage as a magistrate judge in mediating those cases or disadvantage I agree I approach them with some discomfort because you're always trying to be neutral and when you have a disparity of power or experience or knowledge it's always worrisome but I think they're perfect cases for mediation because again the pro se individual comes with respect for the court and you can again you create a level playing field as best you can and give invest that person with a dignity that they may not otherwise feel in the process so I think they're well suited I love the idea I heard Judge Levy say about appointing counsel to represent pro se in the mediation that would even create a better situation but I find I've settled one a week a week and a half ago and I do think they're well suited to mediation and you John have you mediated cases with pro se? I have not mediated pro se cases though you do from time to time face some of the same problems as a mediator where there's a significant disparity between the abilities of counsel on one side of the other and one of the things that I as a mediator and always cognizant of is that I can't where my lawyers had and I can't litigate the case for the parties I don't think it's my responsibility to inform the defendant that he or she has missed two critical affirmative defenses or that the plaintiff hasn't really pled the best theory to fit the facts of the case I may have strong views on that but I certainly can't tip the balance and I want to come back a little bit later in this discussion to some of the kinds of problems that arise in the mediation and confront the mediator and the parties and the court with some difficult ethical and other kinds of issues but before I do that I want to ask about the complex cases the judges obviously said yes, complex cases are perfectly suitable for mediation. Carol, I wonder if you'd comment on that. Well, I would sort of circle back to what I said earlier I think that yes, they can be and they should be very suitable for mediation but I do think you'll find that often times you will have and I do defend cases of mediation too so I'm not trying to always speak from a plaintiff's perspective but it's something worth saying and that is there will be some defense counsel usually sometimes plaintiffs counsel but usually defense counsel who are not paying attention to their case as it's unfolding they're only sort of operating in a reactive posture of just responding to interrogators, responding to document requests and they're not thinking ahead in the case as to what this is costing their client to go to trial they're just billing the hours and submitting their bills and getting paid in those cases where you have multiple defendants you may find that there are some defense counsel and some clients who are interested in mediation early and often they sort of incremental, intermittent mediation that we've heard spoke of in the previous panel and Judge Gavi has spoken of here I think that's a very effective use of the mediation system but there is going to be some resistance because some attorneys whether it's a plaintiff's defense but in my experience often defense are going to make it very difficult to really have a successful final mediation session. I've certainly seen this scenario that Carol paints for us here but I think one of the things the mediator has to be aware of are the legal economics that work in any mediation she paints the picture well from the defense side on the plaintiff side if that lawyer has a big mortgage payment due two weeks from now it may push in the other direction and you wonder if the result there is always fair but one of the things I think is great about mediation is that well litigation is a lawyer driven process in its best form mediation is a client driven process particularly in a complex case where there are business interests at stake very often the driving force in the negotiations is often the CEO and not the lawyer and they're very interested in what all this is going to cost them how long it's going to take. I understand that we have a question that has been faxed in earlier so I'd like to take that question before we continue. Thanks Donna we received the facts from Michelle Roybel from the US court in the district of Utah the ADR administrator what is the perception of co-mediation do the panelists think it is a benefit to have two mediators participate in one session for example one could be a substantive expert in the area of law and one could be a procedural expert in providing a mediation form additionally might having two mediators be a benefit in a scenario with multiple parties It fits very well with what we've been discussing the complex case multiple parties and when do you call in another mediator to work with you John? I have had experience with it very successfully in a number of cases and I'll give you a couple of examples we're mediating a case not long ago that dealt with retiree health benefits that were in danger of breaking a company and I'm no expert on arisal law expert on management of a company in financial distress so we brought in as a co-mediator a university management professor who worked with the company to show them how they could so organize their company so readjust their finances so that they could maximize the return for the retirees it worked perfectly I mediated a dispute between two cities who had been at war with each other for 30 years over sewer and water expansion issues we had three mediators I was running the process we had a water sewer engineer talking to the technical folks and we had a forensic accountant talking to the people who were keeping track of the dollars and it worked beautifully in those cases I think you have to identify a need that is technical in nature or specialized in nature bring somebody in let the lawyer mediator worry about the process because you don't want two mediators fighting over what direction you're going to take things but use the second or the second and third mediators as a resource I had a situation somewhat different than that I wouldn't call a co-mediator but I had a physics professor because it was an IP case an intellectual property case that had been 10 years in our courts up and down and up and down very complex scientific and I never took any science in high school and so I had this physics professor and it kept everybody honest because he sat next to me he didn't have a speaking role largely but he kept everyone honest so that the issues got put on the table and I wasn't bamboozled as much as I might have been as to the strength of weakness so I thought it was a very effective way of dealing when I saw it when there was a need it was like a court's expert in the mediation process in the small amount of time that we have left there's two other things that I'd like to make sure we talk about one is about the timing of the mediation we heard the judges talk about it I want to make sure we get it from the perspective of the mediators and the attorney and then I'd like to talk a little bit about the problems that arise in the ethical issues in mediation in court cases but first about the timing of course as you heard the conventional wisdom was the mediation can't really be successful until after discovery is complete Carol what's your view on that? I don't think that's so in most cases in most traditional tort cases or contract cases that do not involve multiple parties I think that what is true though is that there probably has to be some exchange informal exchange of information between the parties either at the mediation session or in between sessions I think that is what's really key with respect to the timing of mediation and trying to have it occur earlier is that the judges be involved in this process to encourage it if not at that initial conference as we spoke of earlier at a status early status conference and to be available to the parties to encourage it even further but it seems to me that if you assume for the sake of argument that a motion will be granted in the course of the mediation and the mediator is more of an evaluative mediator instead of just a facilitator somebody who is willing to give some evaluation of the case then with that informal discovery with certain assumptions as far as the mediation process the parties can and it's certainly in their interest to resolve the case early. You said it's particularly helpful when the judge is involved. What kind of involvement are you looking for from the judge? Well I mean a judge could offer to hold a settlement conference or refer to a magistrate judge for a settlement conference. It may be and I've been in cases in which I think that's the best way to go at least as the first step if nothing else. Why? Because I think judges are more inclined to be straight talking with clients, with parties about the cost of the litigation and not the cost of the judicial system because again I think people should have access to their courts and not so much a crammed down situation where they're going to cram mediation down their throat but the authority, the prestige of the court suggesting that mediation is a good way to resolve a conflict that will be resolved someday and that it's a way to resolve it in a fashion where you have some control of the process and where you lose control completely when the jury goes out to deliberate is helpful. Judge Garvey, you have seen it all in mediating over 300 cases. What's your view about the timing? Is there an optimum time for mediation? Every time I'm speaking to the lawyers whether it's in one of my own cases or as a case I may have referral or discovery disputes or for mediation I raise settlement every time I do that. If I've just resolved a complex discovery dispute I'll say well this is a good opportunity now that we're talking let's see do you want to set in a settlement conference. If I have my own case and I'm ready to go to trial and pre-trial conference I raise the issue. So to me and I think we were talking Carol off camera about it is that when you're doing a litigation plan as a lawyer you don't have in there think about settlement on day 62 think about it. That's the job I think the court to remind the parties we should always be thinking about how can we resolve this problem is this let's keep this idea on the front burner. So I think that cases can be mediated very early on and if that's not a good time I'm like John how about let's come back in a month after you've done this or after you've had an auditor come. Just constantly keeping the conversation going and keeping say what else do you need what do you need before it's going to be more productive that sort of thing. Yeah so that to me timing is early and often is the way I do it any opportunity I think we need to raise it. John where do you want that case to be sitting relative to the summary judgment motion? Well the summary judgment motion can be an impediment to the resolution of the case where people are fixed in their legal positions and if you find that you can't get the case resolved before then that's not a reason why you can't come back and resolve it right afterwards. So early and often I think is a good set of a few words to describe how you ought to approach it. Now when I mediate a case I always ask if there are significant legal issues. I want to know that in advance I want to know what the fact issues are but if there are legal issues I want to know what the positions are what the seminal authority is and I'll prepare for the mediation as if I were to hear the summary judgment motion and very often I can work through the legal issues with the parties in the context of litigation in a way that results in them being able to get the legal dispute at least behind them in terms of risk analysis because there's a risk of winning there's a chance of losing almost any motion that's put to any court and if you can get the parties to factor that risk in with the other risks then I think we can save the court a fair amount of work down the road. I want to move on with a few minutes we have left to talk about the problems that arise but I can't do that until I give the attorney in our group a chance to speak to the timing issue. We've heard from both the people who mediate Carol tell us from the attorney's perspective what you think the timing should be relative to summary judgment. To summary judgment. Well if it really is it's a risk analysis. Am I going to win this motion? Am I not? And it's not always something as big as a summary judgment motion. I had a case in which there was a motion pending about the testimony of a witness. Would it be allowed or would it not be allowed? And I frankly wanted to resolve the case to settlement discussions, mediation, whatever before that motion was decided I was 100% confident I was going to win that motion. I knew that if I won that motion I'd win the case. So the parties then I think in every case it's very case specific. You really have to think about how big the issues are and what is the likelihood if you can guess that of whether you're going to prevail or not on a motion. But I will have to agree with both Judge Gavi and John early and often is the rule that I use and I don't think I have any apologies to anyone to use that rule. It's not as if I think it's a sign of weakness that I'll broach the subject of mediation and instead I look at it as a sign of strength. Again I'll make a good offer of settlement coming out early on and that just will just keep going up unless I lose emotion. Let's use our last two minutes to talk about the kinds of problems that arise in mediation. John, when you're mediating a case and you run into a difficulty with the parties, can you tell us what that would be? What kind of problems might you run into? And who do you go to with that problem? Well, if I can take them in reverse. I think it's the mediator's obligation to solve the problem that because of the requirements that govern the process. I can't run to the court. I can't run to the magistrate unless there's really a serious matter of ethical violation where my obligations as an officer of the court run into my obligations of confidentiality. And I think when that happens, and it's happened very, very rarely, my obligations as an officer of the court trump the confidentiality. I think the mediator has to handle it. But I try to avoid those issues coming up by having a pre-mediation telephone conference where we deal with the kinds of things that can be problematic. Lack of authority. Who are you going to bring? And I don't care who that person is, but what I do care is that the opposing party thinks that's the right person and they're satisfied. I want some indication of where people are with their bargaining so that we don't get into a half a day argument about whether somebody is in good faith or they aren't being in good faith because they've got a $5 million price tag on a $200,000 case. And so you get into those things, you try to work through them, sometimes you can't. And we could talk for a long time about these things and I really wish we could but we've run out of time. I want to thank you all very much for being here this afternoon. It's been a terrific discussion. Please stay with us while we again make a quick change here in the studio. We'll return in a few minutes for a final, fast-paced discussion of what judges would like attorneys to understand about mediation and what attorneys and mediators would like judges to understand. Until then, here are a few more comments from our other judges. I'm a trial judge. I like to try cases and in the bankruptcy court there is this sense, perhaps a myth, that this already is a collective process aimed at settling disputes and so what you have a group of lawyers who have that focus and have those skills and perhaps you don't need an extraneous process to help that happen. I must say I've come 180 degrees in the other direction in the past six or seven years as we begin to extensively use ADR and particularly mediation in our cases and largely because I've had some huge multi-party intractable disputes that managed to resolve themselves with the assistance of a mediator when both the lawyers in the case and I myself were very skeptical that that could ever happen. Additionally, the ADR skill set of mediation and problem solving and issue identification is something we use in discovery matters and in summary judgment. Frequently I'll do a summary judgment hearing and finesse or resolve several of the issues by getting the parties to agree as to a resolve and then leaving the true legal issue left to be resolved so that helps the courts and then as far as case management, the parties know what they expect and when in terms of what the court will be expecting them to do, which will be at least to talk about a settlement conference and hold one with the court before they get to trial. Our philosophy is that the best way to get a case settled is to get the parties talking about settlement before their positions have hardened and before they've expended all of the discretionary dollars on preparing for the trial and discovery. So we've found that we convinced the lawyers that this actually worked that cases settle much more easily if it's at the beginning than if it's at the end of the trial preparation process. I asked the lawyers to prepare a plan for the case for discovery and the like which includes a statement regarding their preference for ADR not only the nature of the ADR process that they prefer but also the timing that they think would be appropriate and I will explore that further in terms of what type of discovery, if any, do they think they need to complete before discussing settlement when they think the best time would be and other issues of that nature. I think here, for federal judges particularly those who don't have an extensive mediation program, the state court context in which you work is critically important in my particular state, North Carolina was one of the leaders in the court index ADR and we've had a state court mandatory program for years and years and years now so it's no surprise when I raise with lawyers the possibility of mediation. We use the panel certified by our state supreme court. When a case has completed mediation, whether it's subtle or not it's important for us to preserve the confidentiality of the process and therefore the only thing we get back from the mediators is either a notice that the case is settled or a notice that the case has not settled. Welcome back to this final short panel on mediation and its relationship to case management. I have only two questions I'm going to put to the panelists and I'd like all of you to answer these two questions and we have only about eight or nine minutes to do this in. First of all I'd like to ask each of you for a piece of advice and I'll start with you Judge Gilmour. What would you like attorneys members of the bar in general not the attorneys in a specific case in front of you but what would you like attorneys in general to understand about mediation and about how the court uses mediation? I would like attorneys to think about mediation as a possible means of helping their client to efficiently resolve their case at the very beginning of the case and throughout the case until such time as the case is resolved short of trial and to think about the fact that the courts are busy, the judges are busy but we are willing to help the lawyers get to the mediation process but sometimes we need some reminding and prodding as well so we can be good partners in terms of helping to resolve a case if we work together and to keep the lines of communication open with the court. Judge Levy, same question for you what do you want the attorneys to understand? I would like the attorneys to understand that mediation is an integral part of litigation that I wanted to get some perspective from the beginning of the case that we see the end of the road at the same time as we travel along the beginning parts of the road and to understand that we the court are referring cases to mediation not to get rid of them and not because it helps our docket but because we think it's better for them in the long run that this case that they've given us will be decided one day or another whether it's by a jury, by a judge or by themselves and that there is going to be a decision and they could have that decision today rather than two years from now at much less expense and more participation on their part litigation is the least efficient and most costly way of resolving a dispute that they hear before us because they can't resolve their disputes on their own but they can try at this point that they have a common interest in trying to resolve this dispute so I want them to change their mindset think less like attorneys but more like advocates for their clients at that point and trust in the process and just to understand as an attorney I think what I would like the judges to understand as an attorney is that we will always think as advocates as Judge Levy just said but that we in going to mediation will act as advocates for our clients at every opportunity and yet we need the judges to let our clients know in every opportunity they have meetings about the benefits of mediation and about the benefits of listening to the other side so that if our clients and the clients of our adversaries are hearing this from the court then it has the imprimatur of the court the whole process of mediation so I don't go to mediation and take off my adversaries hat all together because I want the other side to know that if we can't come to some reasonable solution in the case this is what they're going to see in court I will be asking hard questions and I will be making demands on the other side and finally you John what would you like the judges to understand about your work as a mediator in court referred cases well I'd like the judges to understand how valuable a service mediation is that is offered to our citizenry I think it's almost a misnomer in some respects to talk about mediation in the context of case management I think it's better to think of it in the context of overall dispute resolution I know as lawyers and maybe as judges we get caught up in dockets, deadlines deposition schedules motions pretrial orders, trials and we are so focused upon the mechanics that we lose sight of what we're really trying to do and what we're really trying to do in a very simplistic way is to help people solve disputes and so I like to think of it as a cooperative effort between the court and in my case the private mediator or perhaps judge Lee's case the magistrate mediator of working toward an appropriate solution to problems that somebody brings to the system and I think you've already started at least to answer my next question which I want to put to each of you and that is what advice or rule of thumb would you have for the judges in our audience today about the relationship between case management and mediation I think the mediation is an integral part it's not an adjunct of what the courts do and it deserves perhaps more attention than some courts have given in the past we've been fortunate in the western district of Michigan to have had a bench that has been very very supportive of this and very encouraging of it and something happens over a period of years as a result of that interplay between the bench and the private bar and that is you develop a culture in the legal community that supports fosters and nurtures mediation as the preferred way to solve disputes Carol, one last word I would think that one thing that seems to work very well in John's district and others is that the mediators, especially in the complex cases are paid mediators I think it's extraordinarily admirable in your district, Judge Levy, and in Washington DC that there are so many volunteer mediators in these large complex cases it seems to me that when the parties are actually paying for mediation then maybe they'll have more of a commitment to the process and not just go through the motions that's one thing I'd say with respect to case management the second thing I'd say is that judges to encourage mediation should also I think fully appreciate if they haven't themselves ever participated in mediation as a representative of a client in their prior life that they should fully appreciate just how excellent an opportunity it is for clients, especially plaintiffs to vent their feelings and for defendants to express any remorse without admitting responsibility perhaps and to yet also have confidential, totally confidential communications with a third party who could assist all the parties in coming to resolution something that can't really happen in a judge driven settlement conference when that judge is going to be hearing a case because you're not going to show your cards completely about the weaknesses in your case to a judge who's going to hear your case Judge Levy one last comment on that relationship I think a judge has a tremendous responsibility to prepare the parties the clients as well as the lawyers for mediation to make it clear that the court expects the parties to negotiate in good faith that it understands it's in their best interest that it will support the parties in any way possible and necessary that it will always be available that it will hold the parties to deadlines and resolve disputes and remove obstacles but in the end that it's their responsibility and the court expects them to take that responsibility seriously the last word is yours Judge Gilmarina a few seconds if you could give us your view on that it's been very helpful to me to be here and it reminds me of how important it is for us to continue to think about mediation and for my colleagues to think about mediation as a tool to help resolve the disputes and to spend as much time thinking about mediation as we do spending time scheduling working on summary judgment motions and other means that we have at our disposal to resolve a case ultimately thank you all very very much thanks to these panelists and to Judge Morris and Judge Gavi as well I know you appreciate as much as we do our panelists' willingness to discuss their experiences I want to thank all of them and I want to thank all of you for being with us today and now I'd like to return this to Bob thanks Donna I'd like to tell you about a new program the Center is launching this month the program for consultations in dispute resolution which will provide on-site consultations to district and bankruptcy courts if your court wants to establish an ADR program or enhance an existing program to consult with an ADR expert please call Donna Steenstra or Laurel Hooper they'll arrange for one of the project consultants to come to your court at no cost to you to discuss your questions the consultants are judges and court ADR staff who have substantial experience in ADR they can provide consultation on most topics in ADR an email has been sent to all federal judges clerks of court, ADR administrators and others announcing this new program I'd like to remind you that many written materials on ADR can be found at the Center's website you should see the website address on your screen let me remind you also to please complete an evaluation which was part of the downloadable materials on the DCN as always we very much appreciate your feedback thank you for joining us today keep an eye on the FJTN bulletin for upcoming programs of interest and we'll see you on our next FJTN broadcast