The Art of Mediation in Mass Tort Or Complex Cases: Know Your Enemy and Help Your Neutral by Hon

ADR/Mediation

The art of mediation in mass tort or complex cases: Know your enemy and help your neutral By Hon. Jennifer Togliatti (Ret.)

un Tzu said, “Every battle is won to discuss the roles of the participants, not hesitate to tell your neutral specula- before it is fought.” While prepara- the relationships between them, and the tions you may have into the dynamics of Stion is important in every mediation, identification of decision-makers. the opposing parties, their carriers and it is paramount to the successful resolution In the event of a mass tort or class action their counsel. No detail is too small! Your of complex litigation or a mass tort case. case, a meeting with the plaintiffs’ counsel neutral is bound by confidentiality and will When you represent a client in a case of leadership group or class counsel is key never share your speculation. Sensitizing this magnitude you can help your mediator, to the mediator’s understanding of the your mediator to these dynamics will assist and at the same time your client, by com- structure or make-up of the attorney lead- them in adjusting their approach to the case municating to your neutral your insights ership group and which attorneys speak to as needed. This includes your assessments into the three most important elements of particular issues. For example, there may of any particularly difficult personalities the case: the players, the politics and the be divisions of labor by the attorneys, by in the case or significant prior litigation payment. client groups or particularly important interaction that may explain the posturing legal, factual or expert issues in the case. or intense emotions of other parties or their Define the Players Because a complex mediation will ordinar- counsel. I have mediated several cases ily involve many sessions, phone calls and where very sophisticated parties express be- Every complex case has different dynam- emails, it is often not practical to expect wilderment to me at the lack of meaningful ics on either side or sides of the aisle. Any to speak to all attorneys about each of the dialogue regarding settlement between their mediator you choose in a complex or mass issues in the case when the mediator needs counsel with the opposing side, only for tort case should schedule a pre-meeting answers or communication is necessary. me to find out during the process that their with the attorneys for the aligned parties. For example, while you may have lead counsel’s intractable posture with the other If for some reason your mediator does not counsel for a particular group, that attor- lawyer has limited any meaningful conver- schedule a pre-meeting, then you should ney may not be the coverage counsel that sations regarding a pathway to resolution. request to schedule one. In each of my you need to speak to discuss a finer point In my experience, the attorneys working the complex or mass tort cases, I have gained on coverage. Before your pre-mediation case day to day are, more often than not, invaluable information on the dynamics of meeting, think about the divisions of labor spot-on in assessment of the dynamics of a case by meeting with the different sides among attorneys, and what if any client the opposing players, so do not hesitate to groupings by liability, injury or any other share all of your insights with your neutral. quantifier that you have in your case and be prepared to share all of that information Detail the Politics Hon. Jennifer Togliatti (Ret.) with your neutral. is a neutral with Advanced Regardless of who you represent, you It is very important for your neutral to Resolution Management in will also likely have information your consider the interests driving the par- Las Vegas, Nevada. She is mediator wants to know about the partici- ties. Oftentimes the interest of a party one of the most-sought af- pants for the other aligned parties. Whether or parties is not necessarily a significant ter mediators for complex, high-stakes litigation in the it is what you know about the dynamics consideration for that party’s carrier, and country, having facilitated of the other parties’ carriers and counsel, if that is the case, that is very impor- massive settlements in her or the other parties themselves, sharing tant for your mediator to know. Whether first year as a private me- what you know about the relationships and the considerations of a party are adverse diator. https://armadr.com personalities can be very helpful. Also, do publicity and potential negative effect

on business reputation, concerns about of this magnitude could have been in- information to your neutral is a mistake setting precedent with a settlement, the surmountable, however, the parties and guaranteed to result in significant frustra- potential exposure of an excess verdict, counsel had trust: both in the process and tion of the process and, rightly or wrongly, adverse effects on long-term business in the mediators. Sharing vital information potentially lead to distrust by the oppos- relationships between parties or between about the politics and driving interests ing party. Also be prepared to brief your parties and carriers, or a myriad of different of the parties at the outset of the case, in neutral on any declaratory relief actions interests, your mediator should know all combination with keeping those lines of related to coverage and the status of those of this before the mediation begins. You communication open throughout months actions prior to the mediation. may think that opposing counsel will fill of mediation truly assisted with facilitating If you know that the coverage issues in in your mediator on these salient details a successful resolution. your case are so significant that you have about the conflicting interests on their side hired coverage lawyers for your team, of the fence, but in my experience that is Determine the Payment talk to your client about their willingness not necessarily the case. There may be to have the neutral to retain a consult- ethical or client authority considerations The bottom line and getting to an actual ing neutral who is highly knowledgeable that limit opposing counsel sharing those number for settlement is often the most and experienced in the particular types types of details with your mediator. simple and straightforward aspect to a of coverage in play in the case. I was To the extent you are authorized to share mass tort or complex mediation. Regard- lucky enough in the City Center Litigation any specific political or practical concerns less of whether it is a mass tort or a con- over the now imploded Harmon Hotel in regarding your own client’s political in- struction defect case with hundreds of mil- Las Vegas, to have parties that retained a terests in the outcome of the case, beside lions of dollars in dispute, my experience neutral with decades of specific coverage the monetary result, this is also important has been that coverage issues will be the litigation experience to assist me in work- information. While experienced neutrals crux of whether the mediation succeeds ing through the coverage issues with the will likely have a sense of political hot- or fails. Pre-mediation there should be a parties and the carriers, which was crucial buttons your client may have, knowing the presentation of the towers and layers of to the successful resolution of that case. sensitivity will help your neutral ensure insurance coverage, along with a general Attorneys who mediate successfully an approach to the issue in a tactful way description of the terms of coverage. A full understand that it is not all about their that will not result in loss of your client’s briefing of the terms of particular policies case and their case alone. Share every- trust in the neutral you likely agreed to or may be quite helpful to your mediator, thing you know about all the players, all recommended. I can speak to this based however, depending on your mediator the politics and the payment. After all, upon my experience in handling the One it may be sufficient to detail the type of Tzu tells us, “if you know your enemy October, Mass Shooting case in Las Vegas coverage, e.g. builder’s risk, general li- and yourself you need not fear the results as trust was an essential component to its ability, inland marine, etc. Waiting until of 100 battles.” So give your neutral the resolution. The politics involved in a case the actual start of the mediation to get this weapons to succeed. n

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