I’ve received several comments that my focus seems to be on lower court and community cases. What about the “big disputes” we read about today? Is that the same kind of mediation? Yes, and one good example is the NFL player concussion cases. 

In 2011, Ray Easterling, Jim McMahon and five other players filed a federal lawsuit against the NFL. Since that time, thousands of other former players also filed lawsuits, all contending they had experienced repeated concussions throughout their careers. Attorneys for the players alleged that the NFL was aware of the risks from repetitive brain injuries and deliberately concealed those risks from the players. The NFL responded that it had issued warnings based on available medical knowledge of the time. The NFL also contended that player safety was and is governed by collective bargaining agreements between the league and the players. By 2013, more than 4,500 former players had filed lawsuits.

District Court Judge Anita B. Brody of the Eastern District of Pennsylvania, the federal judge overseeing the cases, ordered attorneys for the players and the NFL to meet with Layn Phillips, a retired federal judge, as the mediator in the case. Judge Brody also ordered both sides from publicly discussing the mediation. We do know that the mediator spent two months going back and forth between the parties.

It is assumed that many of the players were dealing with health concerns and might have preferred a settlement over years of litigation with no guarantee of the outcome. And it can be assumed that while the NFL may have felt less financial pressure, the owners may have wanted to avoid the discover process which could have revealed information that might hurt the league reputation.

In major cases such as this, attorneys are involved and litigation has started or is anticipated. The parties have entrenched positions, have a large pool of financial resources, or an important value is involved--or all of the above. By participating, the parties demonstrate their desire to avoid major publicity by choosing to use a mediator with similar experience and/or legal background as most attorneys posses.

These factors do affect the process. In most other mediation, individuals “at the table” do most of the talking and decision making since they are directly involved in the dispute. They may have consulted legal and other advisors, but ultimately, they will make their own conclusions. Even in an major case, it is more likely the individuals are doing the talking and negotiating while attorneys represent the involved parties.

And because parties often want the mediators who are able and willing to share legal opinions, retired judges and experienced attorneys are often preferred options. Given this, many of the mediators in major cases will use some form of the evaluative style of mediation. When former judges are mediators, they often share how they might have ruled if they were presiding over the case. 

But yes, it is still mediation in the end and an effective alternative to extended litigation.

A recent article in the Los Angeles Times has documented one consequence of COVID-19.

The author contends that most civil trials have been postponed as courts slowly reopen for criminal ones first. One attorney is quoted as saying that when faced with possible delays of two years, parties involved in civil disputes are turning to alternative dispute resolution, which can be easily conducted virtually.

One area of civil disputes that has seen a dramatic increase is COVID-related labor and employment litigation. For example, some employees have contended that employers have been using pandemic business losses as an excuse to selectively terminate employees.

While arbitration and mediation are now in high demand, the article’s author argues that alternative dispute resolution favors corporations and employers. One reason the author gives is that arbitration and mediation are expensive.

I agree that arbitration and mediation are alternatives to the courts and that both are easily conducted by telephone or platforms such as Zoom. But I disagree that they favor employers and are expensive.

Every mediator follows a code of ethical standards that demand complete neutrality and impartiality. Additionally, anyone involved in a mediation has the right to terminate the process if they feel the mediator is not neutral or impartial.

As to cost, mediation has always been a cost effective alternative to expensive litigation. It is, of course, possible to find mediators who charge more than others, but there are many qualified and well-trained mediators who charge less. And many use a sliding scale.

To read the original article go to: What happens when COVID shuts civil courts?