1. What is the difference between mediation and a settlement conference?

Attorneys often use these terms interchangeable; however, there is a difference. In mediation, the neutral focuses on having the parties reach a mutually created solution to the dispute. This is accomplished either by the neutral acting as a facilitator, employing negotiating skills, or by the neutral acting as an evaluator, assessing the value of the claim or the parties' respective legal positions after initially beginning as a facilitator. In a settlement conference, the neutral's objective is to hammer out the framework for a resolution based on information about the dispute gleaned from the parties in confidential sessions.

2. What are the advantages of private dispute resolution?

First, the parties to a dispute can retain a neutral long before any lawsuit is filed. By definition, this cannot be accomplished within the court system. Early negotiations enhance the chances for settlement. Second, private dispute resolution is just that: private. The proceedings are not open to public scrutiny. For example, in trade secret cases, the parties do not want to risk intellectual property information becoming available in the public domain. Third, private judges have the luxury of dealing with one case at a time. By comparison, sitting judges often have upwards of 500 active cases assigned at any one time. The pressures of their law and motion calendars and having to try cases makes it difficult for them to find the time to conduct meaningful settlement conferences. Fourth, neutrals such as retired trial/appellate justices have considerable experience in evaluating cases and in negotiating skills. The purpose of alternative dispute resolution is to resolve disputes short of trial, and hopefully long before the proceedings become contentious.

3. Since the court system has now embraced alternative dispute mechanisms such as judicial arbitration and judicial mediation, why hire a private judge?

Arbitrators and mediators on the court panels are becoming more skilled at their craft. Nevertheless, the attorneys to a dispute are not always able to secure the arbitrator/mediator of their choosing because some are more popular and thus less available. Indeed, some have left the panel to practice mediation or arbitration as a private neutral. A private judge usually has the skill, experience and reputation to convince parties to agree to a reasonable settlement proposal.

4. How can I convince my client to utilize the services of a private judge?

If you yourself are not convinced a private, independent, experienced neutral is better able to resolve the dispute than any other person in the court system, then you will not be able to convince your own client to retain a private judge. Attitude toward the litigation process is important. The public policy of this state encourages early resolution of disputes, both to save the public from the costs of legal representation and attendant court costs and to lessen the burden on the trial courts. As an attorney, you have an obligation to explore reasonable alternative dispute resolution vehicles available to you and your client. A client is better served by the attorney who minimizes costs and yet reaches an equitable end to the legal conflict.

5. If I take the first step by suggesting to the other attorney we should consider private dispute resolution, am I displaying some weakness in my client's case?

No. If anything, suggesting that a neutral evaluate or mediate the dispute conveys a sense a confidence you have in your client's cause. It is also a smart idea to get an early reading on the issues before investing a lot of additional time and money in the case.

6. Why do private neutrals want their fees up front?

Bad news is like a bad debt. Good news is like a good deed; it never goes unpunished! Seriously, the neutral should not have to worry whether the statements made or positions taken in sessions with the parties and their attorneys will somehow jeopardize the collection of the fee for services.

7. Why do private judges charge so much?

You and your client are paying for expert services. Many expert witnesses charge even more than private judges. What the private judge provides is integrity, knowledge and experience. The private judge's fees are competitive and reasonable.

8. Are agreements arrived at through the services of a neutral enforceable in court?

Yes. The neutral must ensure that the agreement be reduced to writing and signed by the attorneys and their clients. The agreement must be specific enough to be enforceable in accord with the principles of the equitable doctrine of specific performance. The neutral should memorialize the agreement immediately before "buyer's remorse" set in. C.C.P. section 664.6, applies to those agreements so reduced to writing emanating from lawsuits already in the court system. Arbitrator's awards are enforced by a Petition to enforce it.

9. Who should be present at these ADR sessions?

The client, or the representative of the client with complete authority to settle, must be present. The insurance adjust who has working knowledge of the case and the authority to settle must also be present. On occasion, the carrier may not have a local representative and, with the consent of the private judge, may be on the telephone stand by.