A lawyer’s time and advice are his stock in trade.
We are in a profession where clients have become accustomed to being charged for general legal services on the basis of time spent on the case by the attorney or paralegal involved. Similarly, it has also become customary to handle personal injury matters and other kinds of litigation for plaintiffs-claimants on a contingent fee basis. Less often in complicated legal matters, but on occasion, counsel will agree to a flat fee for a particular case.
Surprisingly, it is rare that a fee agreement outside one of these models is acceptable to both attorney and client. Old habits are difficult to abandon. Although creativity in billing for legal services has not been widespread in either the business or legal community, we encourage frank discussion about fees with our clients, and do our best to accommodate both their ability to pay and their expectations. We are happy to discuss fee arrangements more suitable to client goals, such as result oriented (or bonus-based compensation for services) and/or combination of retainer (guarantee) and contingent fee agreements.
The manner in which clients are charged for services has become a matter of significant debate within the legal profession in recent years, and we, as a firm, are always willing to listen to the client’s point of view.
The Mediation Process – Initial Conference Call
The purpose of the initial conference call is to provide me with enough information about the case so that proper ground rules can be established for the conduct of the mediation. I usually ask each counsel to give me a brief description of his or her view of the case and an analysis of particular legal issues that need to be addressed. This call is a good opportunity to determine what counsel agree upon and what areas are in dispute. Usually counsel will advise why they are mediating the case. Most often it is voluntary, but sometimes a judge has suggested or ordered the mediation. On other occasions the courts have scheduled a settlement conference before a judge or a judge pro tempore and the parties believe that private mediation will be more productive. Any of these circumstances is something I as a mediator want to learn.
I also want to be advised where the litigation is venued and how far along towards trial the case is. I generally inquire whether the case is ready for mediation or whether further discovery needs to be done. If certain discovery is essential prior to mediation, we need to be certain it is finished by the date of the mediation, though often the reason to mediate in the first place is to avoid that discovery by settling the case. The last item of business for this conference call is to schedule a date for mediation if one has not already been chosen.
Finally, if decision makers are not going to be present in person, I need assurances from the other party or parties that participation by telephone is acceptable to them.
Usually I ask for written submissions a week ahead of the mediation, but if the case has numerous parties or seems complicated, I prefer the submission 10 days or 2 weeks ahead of time. Generally my preference is that the mediation submissions are shared among all parties, with any party reserving the right to submit certain additional items on a confidential basis for my eyes only. If any lawyer in the case wants the entire submission kept confidential, I usually impose that restriction for all. In my experience, however, it often turns out that there is little reason to keep total confidentiality because most of the information has come out in discovery.
The Mediation Process – Follow up Conference Call
Following receipt of mediation submissions, I sometimes conclude that it would be beneficial to discuss issues or concerns raised in them with one or more of the attorneys involved. It could be that something in the written materials needs to be followed up with all counsel so that at the mediation we do not have uncertainty. It could also be that I have noticed something that is unclear which I would prefer to discuss only with one of the lawyers.
At some point along the process I usually get the consent of all counsel to follow things up on an individual basis, and to let them all know that I might be calling all of them, or any of them separately to clarify things. Given that this is a mediation, and I will not be deciding the ultimate outcome, I rarely encounter resistance to this approach. Usually counsel take the position that anything that makes the mediation easier or likely to consume less time is advisable to handle in advance.
If my concerns generated by the written materials can wait until the mediation itself, there is no need for an additional conference call, and I often meet with the attorneys prior to commencement of the mediation in order to address those points. In either instance, this call or brief conference is a good way for me to let counsel know that I have read what they submitted.
The Mediation Process – Engagement Letter and Overview
Ordinarily, a new mediation arrives in my office because of a telephone contact, email or letter from one of the lawyers in a case who has secured the agreement of the others to have me serve as mediator. My procedure is to ask the referring lawyer to forward a caption of the case, assuming it is in litigation, and a full roster of all of the parties and their counsel. Ordinarily I will ask for the identities of any insurance carriers as well. Once conflicts have been cleared or identified, I send a relatively simple engagement letter to counsel acknowledging the request to serve as mediator, and advising them that I am able to serve. If there are any actual or perceived conflicts, I will explain them in the engagement letter to see whether any issues remain.
The engagement letter will advise of my fee arrangement to which I will ask all of the attorneys to agree. My usual practice is to charge a total hourly fee to be divided as the parties agree. Usually that division is pro rata among the number of lawyers involved. The hourly rate covers all work performed, whether in preparation for the mediation, the mediation itself or any necessary follow up. I always advise counsel that if the case does not settle at the mediation session, we can and will continue our efforts, until the case settles or until it is clear that we cannot reach an agreement. I do not charge by the number of parties involved as some ADR providers do.
Generally, especially if I know the lawyers involved and have worked with them before, I do not require retainers or deposits so long as the parties agree that my bills, when submitted, will be payable upon receipt. Recently, I have begun to advise counsel that if they are representing carriers or corporations who prefer to defer bills 60 or 90 days before payment, this practice is unacceptable. It has caused many ADR providers to demand retainers “up front” but at the time of this writing, I am generally resistant to that approach.
Procedurally, my practice is to set up a conference call as soon as the parties return signed copies of my engagement letter. I use the conference call to learn something about the case, and to set the ground rules for the mediation. My primary concern is to learn who will be present at the mediation. It has become evident over the years that it is usually more difficult to settle cases when decision makers are not present in person, and when they are able to hide behind telephone lines. I am also careful during these conference calls to raise issues of outstanding liens or other interests of third parties to the litigation who will not be participating in the mediation. During the conference call we will schedule a date for the mediation if one has not been chosen before the call, and we will also set a date (usually a week to 10 days ahead of the mediation) by which mediation submissions will be provided.
Mediation submissions should consist of a concise memorandum in normal form which sets forth the factual circumstances of the case, any controlling legal issues, a full explanation for the damages sought or defended against, and any history of prior demands and offers of settlement. If there is no negotiating history, at least a demand by plaintiff should be made. Exhibits such as expert reports, medical records and relevant discovery should be attached as exhibits, where necessary.
I always assure counsel that I will have read everything they send me before the date of the mediation. One of the most common complaints I get concerning the mediation process is that too often, counsel and their clients arrive and the mediator is looking at documents for the first time while everyone watches him or her read the file. That should not and will not happen.
Finally I ask for the agreement of counsel to communicate by telephone, email or (only if necessary) by fax. In the event that actual letters are required, transmission by email is faster, and easier to assure delivery.
The Mediation Process – What To Submit to the Mediator
My assumption is that if the lawyers submit material to me, they expect me to read it. In fact, I will have, by the time I receive materials, committed to counsel that I would read everything that is sent. It should go without saying, however, that counsel should not take the lazy way out by just attaching numerous depositions and lengthy medical records without bothering to cull out what is necessary for me to read. Ordinarily, not more than a few pages of deposition testimony is critical, and certainly everyone would agree that 50 pages of laboratory reports from a hospital record are not likely to produce meaningful information to a mediator. It is better practice to pull the relevant pages from records and depositions and attach them as exhibits to a memorandum that explains their significance. Complete copies of the records can be made available at the mediation if other parties want to amplify or parse what has been submitted.
Just as an example, in the typical personal injury case, physicians on both sides will have reviewed extensive medical records and the reports of these experts will summarize past and present treatment and opine on what will be required in the future. Only in the rare case will it be necessary to provide the complete volume of records when they have already been summarized by the experts. Assuming memoranda are shared, the experts will pretty much define the injuries and provide counter arguments to each other.
I do not object to reviewing volumes of records where necessary, but counsel should try to synthesize exhibits to what is necessary for an understanding of the issues to be compromised.
Finally, if negotiations have taken place, I would like to be advised, and if not, plaintiff should at least make a demand so that the defendant(s) have some idea what expectations are. In that regard, making settlement demands prior to mediation that are clearly outside the range of realistic numbers can have a chilling effect on the mediation before it even starts. Some insurance carriers pay little attention to demand numbers, but some become offended to the point where they shut down the process. I might also add that making an outrageous demand can produce client problems for plaintiff’s attorneys. I often hear plaintiffs ask their lawyers “Why are we coming down so much?”