Judge's Corner

Article Index

Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)

Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)

The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)

Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)

A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)

Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)

20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)

Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)

Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)

Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)

Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)

Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)

Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)

Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)

Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)

How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)

Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)

Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)

Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)

What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)

Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)

Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)

The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)

The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)

ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)

Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)

Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)

Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)

Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)

Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)

Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)

Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)

Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)

Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)

Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Circuit Judges
Marion County Circuit Court

(November 2014)

Judicially Hosted Settlement Conferences

A judicially hosted settlement conference is mediation with a judge. Normally, the same rules apply. The terms "settlement conference/judge" and "mediation/mediator" are used interchangeably in this article. Criminal cases aside, there are basically two types of mediations: money cases (the prayer seeks monetary compensation) and relationship cases (divorce, probate, employment, property line disputes, etc). JAMS (Judicial Arbitration and Mediation Services) defines mediation as "A process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences." In the context of the litigated case, this means that the neutral assists in the resolution of some or all of the issues in the parties' case.

Golden Rules:

  1. Mediation should be voluntary (the concepts of "mandatory" and "mediation" are inconsistent).

  2. Mediation should be with a mediator or judge selected by the parties - the neutral that the parties believe will have the best chance at success.

  3. With rare exception (e.g. Child or Elder Abuse), mediations are confidential; the neutral receives ex parte information from each attorney (the mediation statement).

  4. The trial judge (or any neutral who might make a material ruling) should not act as mediator.

How does the practitioner best prepare for the mediation?

  1. What do I include in my mediation statement?
    • Name of the case, the date and location of the mediation, who you represent and who will attend, the name of the assigned trial judge and any trial date.
    • Give a brief statement of the facts, claims and law, and a history of negotiations, if any. What is the short version of the theory of your case? The opposing case?
    • List the key issues to be resolved. Whether there are relationship issues.
    • Has discovery been completed? Will there be any dispositive motions?
    • Any problems you perceive in processing the case? For example, personality issues with counsel, sticky legal issues (drunk driver), anticipated evidentiary questions which might make a difference or differing factual versions of the case?
    • The pleadings (maybe...?)
    • Consider a pre-mediation conference with the mediator. (This is an ex-parte proceeding).
    • Anything that might make a difference.

  2. What should I do in preparation for mediation?
    • Study the facts and law.
    • Make sure necessary parties will be present or obtain permission otherwise. And any helpful parties (i.e. - lienholders) are available by phone.
    • Prepare and deliver your mediation statement at least two days before the session.
    • Spend time with client and prepare them for the mediator and the process:
      • Explain the process and the mediator and her role - include an expectation that the mediator may play devil's advocate (don't be tempted to think that the mediator is against you or supporting the other side).
      • Discuss risks, ambiguities and costs of continuing litigation.
      • Prepare the client for the tough questions which may be asked.
      • Discuss the reasons why a bottom line or take it or leave it, is not something to be decided before the mediation. Try to focus on the future, not the past.
      • Explain that you are not really talking to the mediator, but to the other side.
      • Allow more time than you think. Be patient.
      • Try to allow for a little trust in the process.
      • Think "back and forth".
      • Try to listen to what the other side is saying.
      • Think options.
      • Their first offer may be quite different than the best offer received.
      • At least one purpose is to find out the best offer of the other side.
    • Bring your file.

  3. Does my client really need to be there in person?
    • Plaintiff - YES. (We know about skype, it works for some things, but does not work for effective communication with a person you don't know well).
    • Defendant - Insured, no. If insurance representative, ask the Plaintiff's counsel to stipulate, then maybe not a problem particularly if it is a representative that the mediator has dealt with before. On the other hand, why would an insurance representative not want to be there and get firsthand information especially when the Plaintiff will be saying why didn't they care enough to even show up?

  4. How much should I let my client talk during mediation?
    • For a Plaintiff, why would you want your client to be hidden or reclusive? Don't you want your plaintiff/client to show that they can be a "star"? Besides, most of the value assessment from the carrier comes from the plaintiff herself. Don't you want an "extra" assessment from your mediator to throw in the mix?
    • The client needs to participate for their own reasons. They may feel a need to speak out. They may actually "adopt" this process as theirs (if they actively participate).
    • What are some of the characteristics of the best mediation advocates?
      • Good preparation & planning (actually devote time to this and time with your client). Knowledge of the subject matter (facts and law).
      • Patience.
      • Develop and consider options. Often this follows asking questions to get at the needs and reasons behind the opponent's position. Ask yourself what the other person will think you are saying if you give a particular offer or demand. Is it what you want to say?
      • Deal with your own weaknesses (as well as your strengths).
      • Take the high ground. Treat the other person with respect, even as you argue with their position. In other words, "...be tough on issues, but treat people with respect and dignity".

  5. Mistakes made by attorneys in mediation:
    • Insufficient preparation including a helpful statement to the mediator.
    • Insufficient preparation of clients.
    • Failing to advise client of a weakness in the case.

J. Paul Getty, Founder of Getty Oil, said his father once told him, "You must never try to make all the money that's in a deal.  Let the other fellow make some money, too, because if you have a reputation for always making all of the money, you won't have many deals."

 

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