United States Arbitration & Mediation of Oregon, Inc.

ADR a Judicial Perspective

By Hon. Frank Bearden

 

I have been in the business of working to resolve legal disputes short of trial for more than 30 years, most of the time through the judicial system.  As a district and then circuit judge in Multnomah County it was always a goal to settle as many cases as possible in order to free the trial docket for those cases that could not settle.  I retired at the end of 2008 and joined the private ADR sector along with sitting from time to time on the Circuit bench as a senior judge.  While the desire to settle a case is the same either through judicial settlement conferences or private mediation, the approach and circumstances are somewhat different.

 

A judicial settlement conference doesn’t occur until a case is filed and a trial date usually set.  In fact, many judicial settlement conferences in Multnomah County either occur early in the case before discovery to avoid going through the time and expense of that process, or they are scheduled later near the time of trial to either gain a reset of the trial date (required in Multnomah County) or to avoid a trial where both sides have now identified significant risk issues.  My experience in many hundreds of these conferences is that often too little time is available for a full exploration of the possible options for settlement, or one party is clearly unprepared to the point that discussions can only go so far and that is usually not far enough.

 

Still, the earlier economic recession a few years ago which caused the courts to close on Friday, opened the door to the possibility of scheduling conferences on Fridays when the courts reopened and trial dates were set well in advance leaving those days available for a number of weeks.  Using Fridays and other days of the week for settlement conferences gained traction and now it is part of the makeup of the docket.

 

One interesting phenomenon I discovered when I was presiding judge is that I noticed that many attorneys who made frequent use of the settlement process had pigeonholed certain judges.  One attorney’s request might be for a certain judge known as an “arm twister,” another for the judge that was particularly good with “client control” issues and still another was good with “complex” cases.  I tried to accommodate the parties when such a request was made for a judge who presumably had a special skill set.  The reality was likely more that a particular judge adapted an approach that fit a particular case and whatever method worked that day was what the attorneys remembered.

 

My experience of the private side of mediation is that attorneys often schedule a mediation before a case is filed and one I had recently was scheduled to resolve a business dispute where no lawsuit was ever contemplated.  The parties are not up against the same time limits as in a judicial conference and everyone comes better prepared and, in my experience, everyone truly wants to settle.  The confidential memos are generally very complete with each side outlining the perceived strengths and weakness of their case and the opponent’s case.  That preparation process alone gets everyone predisposed to settle.

 

I hope I haven’t yet achieved a reputation for having a special skill set since I think that would be a limiting factor.  In my view the mediator should not just be the third party in the room carrying messages back and forth, although that happens.  I have found that on occasion underlying emotions and unspoken agendas have to be identified and cleared out of the way.  The parties have to see the opponent’s side as well as their side from the point of view of twelve jurors who may have a completely different perspective on the controversy.  They also have to fully understand and appreciate the additional costs and risks of proceeding further.  This is mediation 101, but over the years I still learn something from every session that I can use in  the future.  I am also fully aware being a Senior Judge carries with it certain expectations as well as certain advantages.  For some parties it is like getting their “day in court,” so to speak, and a certain level of respect is maintained throughout the session which is helpful to the process.

 

I have high admiration for the lawyers I have worked with over these last few months as a private mediator.  They are often required to walk a fine line by ensuring their clients that they are their strong advocate to the bitter end while at the same time encouraging the client to accept what the client may view as an unacceptable compromise.  The mediator needs to support the attorney’s relationship with their client at those times when a client seems to question their attorney’s motive to advise acceptance of the final terms of settlement at the end of the day.  It is often a defining moment when at some point during the process a party’s true motivation surfaces and many months of sweating out the litigation process turns out to have been unnecessary if the client had only been more forthcoming.  Sometimes though a case just needs time to ripen a bit and get time and distance away from the incident and closer to trial before a meaningful settlement discussion can take place.

 

While I can’t speak for other mediators, I personally find the more complex the issues and the more parties involved the more likely the case will settle.  Getting every stakeholder in the same place at the same time is a helpful dynamic by itself.  Knowing others are motivated to settle and that others will be sharing the pain is also helpful.  It is often easier to steer a group toward a resolution than two parties on opposite sides of a deep line in the sand.  The most challenging for me is when there are basically no disputes as to the facts and all discovery is done and the issue is money pure and simply and the parties are far apart.  A compromise in the middle both see as out of the question or it would have been settled.  There rarely is much to work with in such cases and other ADR specialists I’ve talked with about this issue agree that the frustration level is often high for everyone.  It often is a matter of shuttle diplomacy and who blinks first.  Still, these cases settle too, often to my amazement.

 

Like it or not ADR is going to grow in importance as case filings increase while judicial resources decline or fail to keep pace. Lawyers who develop client relationship skills and who prepare as thoroughly for settlement negotiations as they would for a trial should experience less stress along with enjoying happier, more grateful clients after a successful out-of-court resolution earlier rather than later.  Less than one percent of the civil cases filed in Multnomah County end up going through a trial although the client is often psychologically prepared from the start to do battle.  The client had hired their warrior.  Nothing wrong with that as a start if that is the client’s wish, but also preparing the client early on to be in the frame of mind to resolve the case in some manner prior to trial can get the client to think of creative ways to assist the lawyer in resolving the matter outside of the trial arena.  Oh and by the way, it makes the mediator’s job much easier as well.

 

What also makes the mediator more productive is for the attorney to suggest methods and ways of approaching the opponent party.  After all, there has already been some discussion between the parties before formal mediation and each side might have a feel for what they believe the other side is really after or what has been a sticking point to settlement so far.  I find when I get these thoughts in a pre mediation confidential memo I have time to consider ways to deal with the problems before the face-to-face session.  I enjoy ADR and the feeling of success when the parties not only settle, but leave with positive feelings about the mediation process and the effort and skill their respective attorneys put forth to make it work.  For me, that’s a “win win” moment.

 

 

Frank Bearden retired from the bench after 30 years of service in Multnomah County.  He served as presiding judge and tried well over 1,000 jury cases which included criminal cases of all types and civil cases ranging from personal injury, medical and legal malpractice to mass torts, construction defect, intellectual property and trademark cases, as well as, environmental pollution and business transaction cases.  Judge Bearden’s activities include service on several Bar committees from Detention and Corrections to Professionalism, as well as, lecturing at CLE sessions on presiding court issues.  He is currently available to mediate private disputes through US Arbitration and Mediation of Oregon, Inc.