Arbitration & Mediation

7. To individual defendants in caucus ?Assume for the moment ? pretend, if you wish ? that you could get out by yourself (i.e., disregarding for the moment cross-claims, indemnification issues, etc) how much of that amount would you willing to pay??

8. Reconvene plenary session to discuss this ?Anonymous Total.? Of course it?s never enough. Next mediator step: ?So, collectively, you think P should take $____, but collectively, at this time, you?re willing to put together only an offer of $<>. Clearly, something has to change if we?re going to get this done, right? I now want to talk with each of you (either individually or in the by-now-established ?affinity groups?

9. ?Divide and Conquer? ? Work with Ps to determine what they would be willing to take from each D, and start mini-mediations within the mediation. Depending on the law of the jurisdiction regarding release of individual defendants, work the specter of potential piecemeal settlements between Ps and individual Ds or various affinity groups. If they unable to actually get out on their own, get tentative, hypothetical agreements between Ps and individual Ds, that ?If P can get $X, $Y, $Z, etc. from the major players? they will expect no more than specified amounts from the bit roles. The recalcitrant ones then begin to perceive what trial would be like if co-Ds become witnesses for Ps, i.e., leaving them twisting slowly, slowly in the wind. It tends to break logjams.

10. Alternate: Interim funding agreement to settle with Ps, for $X then arbitrate allocation among Ds. I used this successfully in some catastrophic product liability/personal injury cases where the risk of the case going to a jury was collectively greater for all Ds than having to accept something different than their preferred share. On case, after the settlement with P and the scheduling of the ?allocation hearing,? after the emergence of some much information in the mediation all Ds perceived that the ranges of potential individual allocations were not very great. They wanted to reconvene the mediation and we were able to reach a final agreement regarding each player?s share.

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Full post as published by mediator blah...blah... on November 17, 2008 (boomark / email).