| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Two, Number
One |
Honorable
Melanie A. Vaughn, Chair
Mary Louise Preis, Editor
Jonathan S. Rosenthal, Co-Editor |
Preliminary Motion For Mediation
The following article was
written by Louise Phipps Senft and Frank Pugh. It is a concept they believe
would be useful in the Circuit Courts. If you have any thoughts on this concept,
please send them to us by regular mail or e-mail (jonross@erols.com) for publication in the next issue of ADReports.
Many procedural rules of court
relate, directly or indirectly, to advancing a case on the road to trial. Yet
the overwhelming number of cases never go to trial. They settle. Therefore, what
we are suggesting in this article is that court rules provide for a new
preliminary motion, a Motion for Mediation, to facilitate mediation and thus
settlement, early in a law suit. This Morion could be filed by the Plaintiff
with the Complaint or by the Defendant as a responsive pleading to the
Complaint. This Motion would temporarily stay the filing of other pleadings.
Opposition to the Motion for Mediation would have to be based upon a clear
showing that mediation would not be helpful or productive, and would have to
overcome an implied presumption to the contrary. Opposition to the Motion would
have to be based on a specific representation(s) not just on a routine statement
of opposition. In other words, there would have to be definitive reasons for
opposing mediation. And it should be noted that court approved mediators have
already agreed to take some cases pro bono for parties who lack the financial
means to pay.
Once this Motion is granted,
mediation would have to proceed promptly, perhaps completed within 60 days,
under a time schedule set forth by the Court. Upon completion of the mediation,
if any issues have not been resolved, the requirements for further pleadings
would be re-established and trial counsel could then pursue these remaining
issues.
With the existence of this
Motion, counsel will have the professional responsibility to advise clients of
mediation as an option to resolve their conflict. Clearly, parties should know
what is available to them and have the opportunity to choose a less adversarial
approach than going to court. In the medical profession, patients are often
given the choice between surgery and less aggressive treatment. Attorneys should
be no less informative in providing alternatives to their clients, and clients
should have the same freedom to choose.
Would most clients really want to go to trial, or
even go to the expense of preparing for trial, if they knew some quicker, less
adversarial, and less expensive alternative were available to them? Alost
certainly not. People do not file suit because they want to go to court. People
file suit because they want a matter addressed and remedied.
Defendants want the same. That
can happen in mediation. Sometimes it might take the filing of suit (and the
encouragement of counsel) to get the parties to come to mediation. If this
happens, counsel should take rightful credit and satisfaction for causing this
to happen, and the client will give high value to the legal services that led to
a quick remedy. When they later discuss their case with friends and
acquaintances, clients will only remember how fast their problem got resolved
once they went to their lawyer.
Since courts arc increasingly
referring cases to mediation, what would be the advantage of having the role we
are suggesting? Well there are, of course, the pre-litigation costs that can be
incurred prior to court referred mediation. But there can be more firmamental
reasons. As a controversy lingers, positions can harden and animosity between
the parties can deepen. Parties can become less willing to listen and understand
each other’s position, an important element in the mediation process, after
they have undergone pretrial costs and stress. By contrast, a motion for
mediation filed by either party early in the case can be a positive sign that
there is an interest by the party making the motion in trying to amicably
resolve the matter. This can be helpful for the parties. In many cases,
discovery is more to establish facts than to learn them. The parties often know
enough facts and enough about what they want or need that they can effectively
mediate and settle before any discovery. At least give the parties an
opportunity to consider mediation. Nothing is lost but a brief period of time
and the case may just settle. If mediation is not successful, regular pretrial
activities Can be readily resumed.
About the Authors: Louise
Phipps Senft is the founder and Director of the Baltimore Mediation Center.
Frank Pugh is a senior mediator with the Baltimore Mediation Center.
"If you have thoughts on
this article, or have an idea for an article or submission of your own, please
contact Jonathan Rosenthal or Mary Louise Preis. New articles and responses to
anything in this edition, or comments related to any ADR subject are always
welcome for publication!"
