David A. Carney, Esq.

Donald T. Bucklin, Esq.

We hope this publication will keep you up-to-date on the latest topics in the world of alternative dispute resolution and that you find useful information to help in your law practice.

Hon. J. Martin Bass (Ret.)

Judge Bass served the Fifteenth Judicial Circuit with distinction for eight years, including two years as Chief Judge. Prior to that appointment, Judge Bass served in the Juvenile and Domestic Relations District Court of Stafford County for ten years, including seven years as Chief Judge. 

While on the Juvenile Court bench, he was a Member of the National Council of Juvenile and Family Court Judges.  Judge Bass also served on the Executive Committees of the Judicial Conference of Virginia and the Judicial Conference of Virginia for District Courts. 

Prior to his judicial service, he enjoyed a successful career in general practice in Fredericksburg. 

John B. McCammon, Esq.

Hon. Christine O.C. Miller (Ret.)

When I was appointed to the federal trial bench 30 years ago, the hallmark of a great trial lawyer was not the number of wins, but the number of disasters averted.  This was achieved in those really bad cases by cutting the client's losses at a point when the maximum leverage could be exerted. Today the increasing risks of litigation, as well as the accelerating cost of the fight, have moved the parties' inclinations toward settlement to earlier stages of the litigation process. The explosion in the availability of Alternative Dispute Resolution (ADR) processes presents such tipping points that allow for settlement as attorneys assess the best way to serve their clients.

During the 1970's and 1980's, arbitration evolved as a process chosen by corporate litigants. Many businesses opted for contracts that required binding arbitration instead of rushing a trial in a venue with unfavorable statutes, unpredictable juries, or courts that might be unfavorably disposed for any number of reasons.

Over time arbitration developed procedures with discovery, motions practice, written decisions with statements of reason, and even appeals to arbitration review panels. So, while arbitration offered some relief to the relentlessness of a costly trial process, it often seemed too "arbitrary" and fraught with procedural obstacles. Along with increased complexity came costs akin to those incurred in litigation. Furthermore, the staggering amounts of money and increased complexity of subject matter committed to an arbitration did not provide the due process available in litigation.

While arbitration and the judicial system wrestled with the challenges of providing prompt and reasonable solutions at acceptable costs, something new (yet historically old) was evolving. In mediation, a mediator (whether a former trial judge or trained practitioner) can offer what a judge, no matter how thorough, hard-working, and committed, cannot: quantitative and qualitative interaction with attorneys and their clients to assist them in finding their own solutions.

Mediation is a process in which all the parties meet together with a mediator who facilities the exchange of information, helps to examine the strengths and weaknesses of the various aspects of the case, explores the back stories that often control the opportunities and constraints for settlement, and assists the parties in uncovering innovative solutions that may go well beyond what a monetary award could ever accomplish.

Mediation is a negotiation that is filtered through a staged process. The role of a mediator is to facilitate negotiation between the parties while guiding them through this process. Preparation by the mediator is crucial, and the mediator begins with a series of telephone calls to the attorneys jointly to learn the basics of the dispute, confirm the confidentiality of proceedings, and arrange for the submission of all materials that the attorneys want the mediator to review in advance of the mediation session.

The mediation session begins with the mediator bringing the parties together for introductions and establishing ground rules for the discussions. The parties are then encouraged to give brief presentations of their views of the case. Each side has the opportunity to state its case in full and to be heard by all.

Once the presentations have ended, the problem-solving (negotiation) phase begins. The mediator leads these discussions and may decide that the parties should stay together in the same room. Alternatively, the mediator might suggest that the parties break out into separate rooms. Either way, the purpose of this phase is to focus on the issues and possible solutions. The mediator may use varied techniques to help the parties lift up the key issues and find avenues for common ground. This phase can be frustrating and exhausting to the parties, so it is important for the mediator to keep communications moving back and forth to achieve progress, even if by the smallest increments.

Once the basic framework of a settlement is reached, the parties put everything in writing. If a settlement is not reached, the mediator can follow up with the attorneys to continue to build on the progress that was made in the mediation session.

In contrast to arbitration, mediation allows the parties to exercise, guided by their attorneys, self-determination: the power to maintain control over the negotiation process and the outcome. Crucially, the parties, with advice of counsel, can themselves determine whether a case is appropriate for mediation. Even before the parties convene for a mediation session, the attorneys are able to have joint pre-mediation discussions with the mediator and subsequent individual meetings by phone to discuss their concerns regarding the case, their clients' positions, and their benchmarks to accomplish in the mediation. Even if a session does not yield a settlement, the attorneys control the nature and extent of the mediator's continuing efforts in the case. At all times the investment of money, personnel, and time in the mediation process remains within the control of the parties.

Confidentiality is an aspect of the process that can be attractive to the parties who might have a vested interest in not airing their "dirty laundry." The negotiations in mediation are confidential, and this promotes the free discussion that can lead to settlement options.

Moreover, a mediation typically lasts for one day, whereas trials can last for substantial periods of time, and trial preparation over months and even years. The implications for cost savings from a successful mediation are appealing to attorneys and their clients. 

Mediation boasts an impressive settlement rate. Nationally, mediation is effective from 50-80% of the time. Experienced, top-shelf mediators have higher settlement rates, hovering in the 80%+ range. Savvy attorneys know that continuing to mine for discovery is no longer cost-effective for their clients when there are such reasonable options for settlement available. They also know that surrendering control of the outcome to a judge or jury carries substantial risks when weighed against obtaining a mediated result.

In days gone by, the immediate threat of a trial was the main tipping point for attorneys to reach settlement. Now, with many ADR options, at costs that make sense, attorneys are finding the opportunity for settlement much earlier in the litigation process. Mediation offers a way for parties to reach a solution that represents the maximum advantages that can be obtained while controlling the risk, long before the threshold of trial is reached.