The art of mediation in mass tort or complex cases: Know your enemy and help your neutral
Sun Tzu said, “Every battle is won before it is fought.” While preparation is important in every mediation, it is paramount to the successful resolution of complex litigation or a mass tort case. When you represent a client in a case of this magnitude you can help your mediator, and at the same time your client, by communicating to your neutral your insights into the three most important elements of the case: the players, the politics and the payment.
Define the Players
Every complex case has different dynamics on either side or sides of the aisle. Any mediator you choose in a complex or mass tort case should schedule a pre-meeting with the attorneys for the aligned parties. If for some reason your mediator does not schedule a pre-meeting, then you should request to schedule one. In each of my complex or mass tort cases, I have gained invaluable information on the dynamics of a case by meeting with the different sides to discuss the roles of the participants, the relationships between them, and the identification of decision-makers.
In the event of a mass tort or class action case, a meeting with the plaintiffs’ counsel leadership group or class counsel is key to the mediator’s understanding of the structure or make-up of the attorney leadership group and which attorneys speak to particular issues. For example, there may be divisions of labor by the attorneys, by client groups or particularly important legal, factual or expert issues in the case. Because a complex mediation will ordinarily involve many sessions, phone calls and emails, it is often not practical to expect to speak to all attorneys about each of the issues in the case when the mediator needs answers or communication is necessary. For example, while you may have lead counsel for a particular group, that attorney may not be the coverage counsel that you need to speak to discuss a finer point on coverage. Before your pre-mediation meeting, think about the divisions of labor among attorneys, and what if any client groupings by liability, injury or any other quantifier that you have in your case and be prepared to share all of that information with your neutral.
Regardless of who you represent, you will also likely have information your mediator wants to know about the participants for the other aligned parties. Whether it is what you know about the dynamics of the other parties’ carriers and counsel, or the other parties themselves, sharing what you know about the relationships and personalities can be very helpful. Also, do not hesitate to tell your neutral speculations you may have into the dynamics of the opposing parties, their carriers and their counsel. No detail is too small! Your neutral is bound by confidentiality and will never share your speculation. Sensitizing your mediator to these dynamics will assist them in adjusting their approach to the case as needed. This includes your assessments of any particularly difficult personalities in the case or significant prior litigation interaction that may explain the posturing or intense emotions of other parties or their counsel. I have mediated several cases where very sophisticated parties express bewilderment to me at the lack of meaningful dialogue regarding settlement between their counsel with the opposing side, only for me to find out during the process that their counsel’s intractable posture with the other lawyer has limited any meaningful conversations regarding a pathway to resolution. In my experience, the attorneys working the case day to day are, more often than not, spot-on in assessment of the dynamics of the opposing players, so do not hesitate to share all of your insights with your neutral.
Detail the Politics
It is very important for your neutral to consider the interests driving the par-ties. Oftentimes the interest of a party or parties is not necessarily a significant consideration for that party’s carrier, and if that is the case, that is very important for your mediator to know. Whether the considerations of a party are adverse publicity and potential negative effect on business reputation, concerns about setting precedent with a settlement, the potential exposure of an excess verdict, adverse effects on long-term business relationships between parties or between parties and carriers, or a myriad of different interests, your mediator should know all of this before the mediation begins. You may think that opposing counsel will fill in your mediator on these salient details about the conflicting interests on their side of the fence, but in my experience that is not necessarily the case. There may be ethical or client authority considerations that limit opposing counsel sharing those types of details with your mediator.
To the extent you are authorized to share any specific political or practical concerns regarding your own client’s political interests in the outcome of the case, beside the monetary result, this is also important information. While experienced neutrals will likely have a sense of political hot-buttons your client may have, knowing the sensitivity will help your neutral ensure an approach to the issue in a tactful way that will not result in loss of your client’s trust in the neutral you likely agreed to or recommended. I can speak to this based upon my experience in handling the One October, Mass Shooting case in Las Vegas as trust was an essential component to its resolution. The politics involved in a case of this magnitude could have been in-surmountable, however, the parties and counsel had trust: both in the process and in the mediators. Sharing vital information about the politics and driving interests of the parties at the outset of the case, in combination with keeping those lines of communication open throughout months of mediation truly assisted with facilitating a successful resolution.
Determine the Payment
The bottom line and getting to an actual number for settlement is often the most simple and straightforward aspect to a mass tort or complex mediation. Regard-less of whether it is a mass tort or a construction defect case with hundreds of mil-lions of dollars in dispute, my experience has been that coverage issues will be the crux of whether the mediation succeeds or fails. Pre-mediation there should be a presentation of the towers and layers of insurance coverage, along with a general description of the terms of coverage. A full briefing of the terms of particular policies may be quite helpful to your mediator, however, depending on your mediator it may be sufficient to detail the type of coverage, e.g. builder’s risk, general li-ability, inland marine, etc. Waiting until the actual start of the mediation to get this information to your neutral is a mistake guaranteed to result in significant frustration of the process and, rightly or wrongly, potentially lead to distrust by the opposing party. Also be prepared to brief your neutral on any declaratory relief actions related to coverage and the status of those actions prior to the mediation.
If you know that the coverage issues in your case are so significant that you have hired coverage lawyers for your team, talk to your client about their willingness to have the neutral to retain a consulting neutral who is highly knowledgeable and experienced in the particular types of coverage in play in the case. I was lucky enough in the City Center Litigation over the now imploded Harmon Hotel in Las Vegas, to have parties that retained a neutral with decades of specific coverage litigation experience to assist me in working through the coverage issues with the parties and the carriers, which was crucial to the successful resolution of that case.
Attorneys who mediate successfully understand that it is not all about their case and their case alone. Share every-thing you know about all the players, all the politics and the payment. After all, Tzu tells us, “if you know your enemy and yourself you need not fear the results of 100 battles.” So give your neutral the weapons to succeed.
On October 3, 2019 it was announced that the lawyers for MGM Resorts International and the lawyers representing the victims of the October 1, 2017, mass shooting on the Las Vegas Strip had reached a settlement of between $735,000,000 and $800,000,000. After 8 months of mediation, ARM neutral, Hon. Jennifer Togliatti (Ret.) along side her co-mediator Hon. Louis Meisinger (Ret.) of Signature Resolution helped facilitate this settlement and avoid having the case dragged through the court system for years. The settlement comes two days after the second anniversary of the shooting, the deadliest in the nation’s modern history.
On October 23, 2019 Justice Nancy Saitta and Hon. Jennifer Togliatti will be speaking at the 2019 Mass Torts Made Perfect Conference in Las Vegas, Nevada. They will be speaking on panel about MEDIATION IN MASS TORTS: PROBLEMS & SOLUTIONS IN RESOLUTION & ALLOCATION. Other speakers include Hon. Jay Gandhi (Ret.) of JAMS and Hon. David Herndon (Ret.) of Herndon Resolution. The panel will be moderated by Abbas Kazerounian, Esq., Founder & Director of Advanced Resolution Management and one of the founding partners at Kazerouni Law Group, APC. Mass Torts Made Perfect is in its 19th year and continues to be the leading mass tort seminar in the country.
Judge Togliatti’s judicial career began in 1998 when she was elected Justice of the Peace for the Las Vegas Justice Court and, in 1999, served as Chief Judge. She also presided over specialty court dockets for the Eighth Judicial District Court and served as acting Federal Magistrate for U.S. District Court. In 2002, she was appointed by then Governor Kenny Guinn to the Eighth Judicial District Court and has served there for the last 16 years, where she presided over 250 jury trials and conducted over 300 settlement conferences. Her settlements have involved complex, multi-party cases with resolutions totaling well over a half-billion dollars.
As a result, she developed a reputation for being a “miracle worker” and a “closer.” So much so, that the Nevada Supreme Court looked to Judge Togliatti to settle mass tort cases by appointing her as a mandatory settlement judge. At the time, it was unheard of for a district court judge to be appointed by grant of motion to oversee such matters.
Then in 2014, she settled a massive construction defect case involving Tutor Perini Corp., various sub-contractors, casino giant MGM Resorts International and CityCenter’s Harmon Hotel. With more than 400 million in damage claims at stake, 15 months of negotiations, and at times working 14 different caucus rooms, Judge Togliatti brokered a global settlement reported at the time by the Las Vegas Review Journal to be 195 million. She saved the parties and the court countless years of trial and appellate litigation on a very complex case that many said would be almost impossible to try.
“Judge Togliatti is one of the most sought after judges in Nevada. I am so proud that she chose ARM to begin the next chapter of her career,” said Abbas Kazerounian Director and Founder of ARM. “Having someone of her calibre on our roster adds another dimension to our growing panel here in Nevada. She has an impeccable reputation as a jurist and as a mediator. Simply put, Judge Togliatti is the best.”
Her areas of specialty, full profile and case manager are listed below. Please call us for her availability or for more information.
- Construction Defect
- Dental Malpractice
- Labor Law
- Legal Malpractice
- Mass Torts
- Medical Malpractice
- Personal Injury
- Premises Liability
- Product Liability
- Professional Malpractice
- Wrongful Death
Some might say it’s our facility, others might say it’s our success rate with mediations, but in reality it all boils down to one thing: OUR NEUTRALS.
The strength of any ADR provider lies in the strength of its panel, and we strive to provide our clients with mediators and arbitrators who have proven experience and stellar reputations. They are the ARM Advantage.
Recently, we had the opportunity to sit down with some of our Top Neutrals to ask them, what makes ARM so special. You will hear from Hon. Jackie Glass (Ret.), Justice Nancy Saitta (Ret.) and Paul Haire, Esq. and in the process you will get to know them, their styles, and their approaches.
You will get to see firsthand how truly special they are.
“Our job is to be accessible and make things happen for the people who need them to happen.” – Hon. Jackie Glass (Ret.)
“From the very beginning, from case management to support staff, to neutrals who understand what it takes to get a case done, ARM has it all.” – Justice Nancy Saitta (Ret.)
“Clearly over 90% of cases resolve outside the courtroom setting, and here at Advanced Resolution Management we provide the environment to make that happen efficiently and effectively.” – Paul Haire, Esq.
Judge Jackie Glass (Ret.)
- Former 8th Judicial District Court Judge, State of Nevada
- 18 Years as a Litigator
- Former Star of her own Courtroom TV Show
- Private ADR Neutral Since 2012
- Conducted 1500+ Private Mediations & Arbitrations
- One of the Most Requested Neutrals in Nevada
- Available to serve as a Mediator, Arbitrator & Private Judge
An attorney on a recent mediation commented, “Judge Glass is one of a kind. She is incredibly prepared, can always see five steps ahead, and facilitates resolution where others cannot. Simply put – she is a closer.”
Paul Haire, Esq.
- 25 Years as a Successful Litigator
- 14 Years as a Private Mediator & Arbitrator
- Extensive/Top Notch ADR Training
- As a Litigator he Represented both Sides
- Nevada Supreme Court Settlement Judge
- Frequent Presenter of ADR related CLE Programs
- Available to serve as a Mediator, Arbitrator & Special Master
An attorney who used Paul on a recent mediation commented, “Paul is an extraordinary neutral. My clients routinely comment on his professionalism and his knowledge of the facts and the law. He’s at the top of my list for go-to mediators.”
|We are pleased to announce that Ishi Kunin, Esq. has joined ARM’s distinguished panel of neutrals and is available full-time to serve as a mediator and special master. Ishi is a Nevada board certified family law specialist and the owner and founder of the Kunin Law Group where she has represented clients in family law, guardianship, adoption, surrogacy, as well as other significant legal matters for more than three decades.
In addition to her work as an advocate, she has been serving as a mediator since 1997 when she was approached by the Nevada Supreme Court to serve as a Settlement Judge. Her success as a mediator is evidenced by the success she has had in settling hundreds of matters outside her primary field of practice, such as personal injury, business and real estate disputes. As a result, she has not only developed but maintains a reputation for being both fair and reasonable. So much so that it has prompted many of her peers to start calling upon her regularly as a private mediator on their own cases. It’s no surprise that at the end of 2017, Ishi decided to transition from litigator to full-time mediator despite being at the top of her field.
“Ishi makes for another great addition to our panel here in Nevada,” said Jessica Stock, Director of Panel Development at ARM. “Her reputation precedes her. We are also thrilled to add another family law and probate expert to the panel, along with Roger Giuliani. Finding two strong mediators who will complement each other in their area of expertise was very important to us.”
Her areas of specialty, access to her full profile, and case manager are listed below. Please call us for her availability or for more information.
|FOR MORE INFORMATION,
PLEASE CALL HER CASE MANAGER,
OR EMAIL HER DIRECTLY AT CRIS@ARMADR.COM
Justice Nancy Becker and Jay Young are two of ARM’s Top Business/Commercial Neutrals. Both of them have the background, experience and tenacity to facilitate resolution on all types of commercial matters. They understand and consider the legal, business and personal aspects of every dispute. As a result, they can offer a flexible and customized approach to address the often unique and sensitive aspects of your commercial cases.
Justice Nancy Becker (Ret.)
- Former Supreme Court Justice
- 20+ Years of Judicial Service
- Conducted 750+ Mediations & Settlement Conferences
- Private ADR Work Since 2012
- Available to serve as a Mediator, Arbitrator, Special Master, Private Judge & Appellate Consultant
An attorney on a recent mediation commented, “Justice Becker is one of the smartest mediators I have ever worked with. She has a knack for understanding the nuances and niche issues and she works tirelessly to resolve the matter.”
Jay Young, Esq.
- 20+ Years as a Business Litigator
- ADR Certified since 1994
- Appointed Arbitrator 300+ Cases
- Supreme Court Settlement Judge
- Business Court Special Master & Pro Tem Judge
- Available to serve as a Mediator, Arbitrator & Special Master
An attorney who used Jay on a recent mediation commented, “he is extremely professional, fully prepared, strategic and effective.” Another said, “simply put, Jay Young is a person you can trust.”