Why Judge's New Procedure on Confidentiality May Result in Increased Arbitration and Mediation

By John L. Watkins

The Hon. J. Owen Forrester, Senior Judge of the United States District Court for the Northern District of Georgia, recently announced a new case management procedure that will limit the parties from consenting to blanket protective orders to protect the confidentiality of documents in civil cases. Such orders typically permit the parties to designate documents as "confidential" or "attorney's eyes only" without the necessity of court review or intervention. These orders are fairly common in complex business cases. Judge Forrester's procedure requires that he review a document before it is designated confidential.

Judge Forrester explained the adoption of the procedure to be based on his view that the courts should generally be open to the public. It remains to be seen whether other judges in the Northern District of Georgia or other courts will adopt Judge Forrester's procedure. However, Judge Forrester is very respected, so it would not be surprising to see his view gain favor with other judges.

If Judge Forrester's procedure becomes more widespread, there may be some interesting consequences. This past week, I participated in an interesting panel discussion on arbitration before the Atlanta Bar Association's Alternative Dispute Resolution Section. Another panelist suggested that Judge Forrester's procedure might lead to an increased use of arbitration because arbitration procedures are typically confidential. In addition, because arbitration is a creature of contract, it would seem likely that any agreement by the parties on discovery and confidentiality would be followed by the arbitrators.

Another possibility is that the procedure will foster an even greater use of mediation, or will perhaps result in mediation being used earlier in the process. Mediation is by its nature an extremely confidential process. I have previously written about why this characteristic makes mediation particularly useful in cases involving intellectual property, including trade secrets.

As for litigation, Judge Forrester's procedure will definitely require the parties to take a more detailed and focused look at confidential information that is the subject of discovery. In some cases -- those where there really is very little confidential at issue -- Judge Forrester's procedure might streamline things because the parties will simply produce the information. On the other hand, in cases where confidentiality is truly in issue, the very careful and selective review and analysis required, along with possible resulting motions practice, may slow things down and will probably result in increased expense.

The only sure thing is that Judge Forrester's procedure will require parties and their counsel to think carefully through their options before filing suit or in conducting discovery.

Mediation: You Have To Be "Ready"

By John L. Watkins


I have written previously that the best time for mediation is probably when both sides have enough information to make a thorough and well-reasoned evaluation of their case and their opponent's case. My article on this is available on my mediation website, http://www.watkinsmediation.com/, along with articles on other mediation topics.


Although this is still a good rule of thumb, a few recent experiences have reminded me of an important corollary: The parties have to be ready. What does that mean? Quite simply, it means that the parties have to be prepared at least to contemplate the possibility of settlement on a meaningful and realistic basis.


What "ready" means certainly varies among litigants. However, in almost all cases, even business cases, being "ready" includes an emotional or psychological component along with the informational component. The two often go hand in hand: Getting the necessary information may change the attitude.


Parties need to understand that almost all settlements involve an element of compromise on both sides. If a party assumes that the mediator will see things only as the party sees them, and will somehow convince the other party to admit it was wrong, a successful conclusion is not likely. Very few cases settle with one party going away entirely empty-handed. It is true that it may not take much to convince a party with a weak case to settle. But it usually takes something.


Despite the obvious benefits of an early settlement, some parties just take more time to get "ready." That may mean another round of discovery and another round of motions. Although this may seem wasteful, ultimately, if a settlement is to be reached, human beings with authority are going to have to agree for both sides. The human mind can be a delicate thing, particularly regarding disputes. Elements of emotion, hubris and even self-delusion sometimes have to be confronted before the parties' representatives are both ready to agree.


What does this mean for a mediator? Certainly, it is part of the mediator's job to help get the parties "ready." It is a good idea to talk candidly to counsel for both sides (probably privately) about whether their clients are really prepared to consider settlement. If one side is clearly not ready, it may be wise to suggest that the mediation be postponed until some definitive milestone is reached (perhaps the taking of another deposition or the court's ruling on an outstanding motion).


If it appears that a good part of the mediation will need to be spent getting one party "ready," it is a good idea to anticipate multiple sessions, and to make sure the parties are prepared for multiple sessions. If the parties are not told of this possibility, they may conclude that no progress is being made, and positions may harden.


What does this mean for counsel for the parties? Make sure, first, that your client understands the process. Try to make sure that the client is ready to explore settlement in a meaningful manner. This can sometimes be difficult because some clients do not want to hear their advocate discuss anything less than total victory. Other clients understand that the goal is the best possible resolution.

If you, as counsel, need help with a client, tell the mediator privately. One of the best things a mediator can do is to provide feedback to clients that is sometimes difficult for lawyers to give.

If the mediator and counsel work together, both parties are likely to be "ready" when it is time to mediate, or to get "ready" quickly during the mediation process. Once that happens, mediation is usually successful.


If you would like to discuss these or other topics, or need a mediator, please contact me. My contact information is in my bio.

Evaluative Mediation: A Mediator Has to Be Real

by John L. Watkins

It is no secret that I am a fan of mediation as a process to resolve disputes. However, I was once reminded in representing a client in mediation that some mediators not only fail to help the parties reach a resolution, they can actually make things worse.

Without getting into the details, the mediator essentially downplayed a major concession that my client was willing to make that went far beyond standing on its clear legal rights. After meeting with the other side, the mediator informed us that the other side did not think that this was a major concession, even though the mediator had to acknowledge that it was.

The mediator's attitude seemed to be that because the other party's subjective beliefs were entitled to at least equal weight with any objective evaluation of the law. Thus, although my client was willing to make a substantial concession, the concession was somehow entitled to little or no value because the other party said they refused to believe it. The mediator thus seemed to believe that the other party's subjective beliefs somehow controlled reality. Needless to say, this went over like a lead balloon.

By giving equal, if not controlling, weight to the other party's subjective beliefs as to an objective view of the law, the mediator lost credibility with my side. The parties made no progress, probably ended up further apart, and the mediation was a failure.

This result was not surprising. As I have written before, a mediator needs to be an advocate: Not an advocate for either party, but an advocate for a reasonable settlement. If the mediator is willing to take positions that lack support, logic, or that appear -- without reason -- to favor one side over the other, the mediator loses credibility, just as would any other advocate.

A mediator can make things worse. A mediator using an evaluative approach has to have credibility. It is one thing to push a party's view of the case based on unfavorable law, facts, or the mediator's experience with similar matters. It is quite another to try to push a party -- particularly in a business dispute -- based on the other party's subjective beliefs or feelings that cannot be objectively justified.

For views on how evaluative mediation can be effective and should be practiced, please visit my website, http://www.watkinsmediation.com/, particularly the tab on "advanced mediation."

What Does "Neutral" Mean?

By John L. Watkins

It is often said that mediators are “neutrals,” but there seems to be very little discussion about what “neutral” means. It is, frankly, a word about which I suspect mediators and lawyers would disagree. Here are a few thoughts about what it means to me.

In its most general sense, a neutral mediator will not act or express views based on factors that are unrelated to the dispute. Neutrality does not mean, however, that a mediator needs to be -- to paraphrase a well-known trial lawyer -- a “potted plant.”

A neutral mediator can, at the appropriate time, ask tough questions, also known as reality testing. If a mediator is to help the parties to reach a settlement, he or she needs to help the parties understand the strengths and weaknesses of their cases. It is also important for mediators to sometimes raise the question of whether a judge or jury will see the facts the same way as a party. The principle of neutrality is violated, in my opinion, only when the mediator is not providing equal treatment to both sides.

Depending on the facts of the case, it may be pretty clear that one party has an objectively stronger case than the other. If the mediator is helping the parties understand the strengths and weaknesses, this should become apparent to the parties. If one party is sympathetic or likely to be well received by a jury, it does not, in my view, violate the principle of neutrality by bringing this point to the attention of the other party. This can be done, however, without advocating for the other party. For example, the mediator might ask: “Of course, I understand that you disagree, but what did you think of how Ms. Smith presented her side in the joint session?” Or, “do you think it is possible that some of the jurors may identify with Ms. Smith?”

If a party appears to have a strong case, the mediator can remain neutral and still remind that party of the twenty percent rule, which means that, in litigation, there is always about a twenty percent chance that even a party with the strongest case will lose. It is often surprising the things that jurors will seize on to decide cases, and they may not be readily apparent to those of us with legal training.

For these reasons, I do not think a neutral mediator needs to be a potted plant. In fact, mediators who are nothing more than note carriers do not, in my view, help the parties reach a settlement.

I have previously stated that I would prefer a mediator to be an advocate, but not an advocate for the parties, but for a settlement. What does being an advocate for a settlement (sometimes called being an advocate “for a deal”) mean? It means making sure that the parties have fully explored their respective cases and have fully considered possible settlement terms. It means making sure that the parties fully understand what they are facing in continuing with litigation. If the parties have achieved this, there is a pretty good chance they will reach a settlement.

Of course, not all cases that are mediated settle. Sometimes, the parties just will not get close enough. One of the best points about mediation is that a party cannot be forced to accept a settlement that it does not believe is fair. In representing parties, I have often been surprised how mediation settles tough cases, but there have been other cases where we walked simply because we did not view the settlement offered by the other side to be acceptable.

If a mediator has taken the steps outlined above and has, as is sometimes put, been equally “hard” (perhaps vigorous is a better word) with both parties in helping them explore their cases and the settlement alternatives, then that mediator has, in my view, done his or her job as neutral.

How Can That Person Be a Good Mediator?

By John L. Watkins

Perhaps due to my background, perhaps self-interest, or perhaps simply due to the old saw regarding "birds of a feather," I tend to think that experienced lawyers, especially crusty old litigators, often make great mediators. Litigators, particularly old ones, know that you do not win every case, even those that seemed very strong. Litigators know the problems and issues that can arise in proving a case in court. Niceties such as the rules of evidence and the unpredictability of judges can make proving a case in court a much different (and far more difficult) proposition than simply arguing a position in a less formal environment. Litigators also often have a pretty good idea about how a case is likely to turn out.

Some may question, however, whether a lawyer who is used to advocating for parties can really slip into the role of a mediator and be neutral. The answer, at least as I have found it, is a resounding “yes.” Lawyers understand that, in acting as a lawyer, their job is to be the best advocate possible for their client. However, in acting as a mediator, their role is to help the parties try to settle. As a mediator, a lawyer is not representing either party, and is being paid by each party. A “win” for a mediator is helping the parties reach a settlement. So the fact that a mediator may, for other parties and in other circumstances, also act as a lawyer and advocate does not bother me in the least.

Of course, a lawyer’s background, like any proposed mediator’s background, should be considered in picking a mediator. If, for example, a proposed mediator is also a lawyer who has habitually represented only plaintiffs in personal injury cases, a defendant in such a case may be reluctant to use that person. However, even in such circumstances, such persons may make good mediators. In fact, somewhat paradoxically, such a lawyer may more fully comprehend the difficulties of actually trying a personal injury case.

New Podcast Series on Mediation Available

If you want to know more about mediation, I just completed a new three-part podcast series on mediation that is available on the Chorey, Taylor & Feil website, at www.ctflegal/podcasts.html or on the firm's page on the Blip TV site, http://www.ctflegal.blip.tv/. The series includes an introduction to mediation that contrasts the civil litigation system to mediation. The second podcast provides a detailed explanation of how the mediation process works. The third podcast discusses how to pick the right mediator for a particular dispute.

The podcasts include a few fairly strong opinions, which are mine, and which have developed over time. I have been involved in representing parties in mediation for about twenty years (mediation came into widespread use in a Georgia a few years after I began practicing law). One of my early bosses and mentors, Jack Watson, chaired the Georgia Commission on Alternative Dispute Resolution at the time. Through Jack's prodding, all of us who were then in the litigation department at Long, Aldridge & Norman (now McKenna Long & Aldridge) got a good dose of exposure to mediation and mediation training, whether we wanted to or not!

Early on, I was very skeptical of mediation. It seemed to me to be just another step inserted into the civil litigation process, and, frankly, just an excuse for lawyers or retired judges to make money. After all, good lawyers settled cases anyway, so why would anyone need a mediator?Some of my early experiences in mediation validated my initial point of view. I remember one painful mediation involving a much older lawyer acting as a mediator. All he did, in a somewhat whiny voice, was to point out the expense of litigation and to say, "A bad settlement is better than a good lawsuit." This particular mediation was a totally worthless experience. (For the record, I do not see why you ought to take a bad settlement if you have a good lawsuit. The goal of mediaiton should be a fair settlement).At some point, however, I was exposed to really good mediators, such as Abe Ordover of the now-defunct Resolution Resources Corporation. Abe had a truly magical touch as a mediator. I saw him and other good mediators, such as Marty Ellin, help resolve cases that were difficult to settle, and that, in some instances, seemed "unsettleable." Unfortunately, at least for those of us who need good mediators in Atlanta, Abe moved to San Diego several years ago. Abe is now running an art gallery (Abe is an extremely talented photographer in his own right).

Not being completely set in my ways, early views of mediation changed drastically, and I became and remain a great proponent of the process. In my last ten to twelve years at McKenna Long & Aldridge, a great deal of my practice involved cases outside of Georgia. These cases ranged from fairly routine business litigation matters to huge cases involving many parties and lots of exposure. This experience gave me an opportunity to see mediators from other parts of the country, including a few of the more nationally known "rock stars" in mediation.

Although the experience was great, and McKenna was (and is) a great firm, the travel was not so great. When I left McKenna in 2007, ultimately having the good fortune of joining Chorey Taylor & Feil, my practice returned to being, in general, more local in nature. I felt it was a good opportunity to try to share my knowledge of mediation. As a result, I became a registered mediator with the Georgia Office of Dispute Resolution, and also started a mediation website, http://www.watkinsmediation.com/, which contains articles with my thoughts on mediation. Most of the content on the watkinsmediation site is also available on the CTF website at http://www.ctflegal.com/mediation.html. Just click the links on the bottom of the page for articles on basic mediation and advanced mediation. I hope the podcast series will also provide valuable information.

When I announced I was available to act as a mediator, many of my colleagues in the legal community apparently thought I was retiring from practicing law. That is most definitely not the case, and the vast majority of my time is spent practicing law. However, I have found that crusty old litigators tend to make great part time mediators. Although I do not feel old, and I hope I'm not "crusty," I am available, through Chorey, Taylor & Feil, to act as a mediator. My colleague, Celeste McCollough, is also a registered mediator and is available to mediate through the firm.

The firm has excellent facilities for mediation, and we do not charge an administrative fee.

The Twenty Percent Rule

By John L. Watkins

Sometimes, clients that I represent or parties in mediation will ask me why they should consider compromising a claim. They may express supreme confidence in the case, stating that "there is no way we can lose," and expressing extreme reluctance to take anything less than one hundred percent of what they want.

People with this attitude need to be introduced to and to understand the "twenty percent rule." The "twenty percent rule" is not an original idea of mine; it was mentioned in a discussion I had a couple of years ago with a very experienced and somewhat crusty old litigator. The rule does, however, encompass thoughts I have had for many years. The twenty percent rule just puts these thoughts and concepts in a much more compact and easily understood package.

The twenty percent rule is this: No matter how good you think your case is, no matter how good your lawyer is, and no matter how obvious you think the result should be, there is always a twenty percent chance you will lose in litigation.

Why is the twenty percent rule true? Because unforeseeable things happen in litigation. Star witnesses blow up in depositions or on the witness stand, even if they are well prepared. There may be a document or email out there that you (and your lawyer) did not know about when the case was filed.

But, most importantly, cases are resolved by judges and juries. Judges and juries are human beings, and, given that fact, may not see things your way. Judges and juries may seize upon facts and issues that you know are irrelevant to the dispute, but which become highly relevant, because they get to decide the case, not you.

Judges and juries may simply like the other side better than you. Maybe your confidence will be perceived as arrogance. Maybe the other side has an explanation that resonates. If you do not think these factors are important, you should know that, in large cases, parties hire psychologists and sociologists as jury consultants. Jury consultants can provide tremendous insight into how jurors from the area will look at a case, and their research often reveals surprises.

Judges can also be a factor. In a couple of recent important cases, I have actually seen judges simply ignore key legal issues that were potentially dispositive, and that were thoroughly briefed and presented to them. Why? I do not know, but can only assume that addressing the issues would have made it more difficult for them to reach the result they had decided to reach. Intellectually defensible? Of course not, but this stuff happens in the real world.

I am not suggesting that the civil litigation system is irrational. I am not suggesting that you should evaluate a case with the assumption that an irrational result will be reached. Most of the time, the system works and reaches a rational result. Usually, the party wins that should win. But the twenty percent rule does come into effect. And if you are considering a settlement, you should keep the twenty percent rule in mind in your analysis.

What does this mean for mediation? Well, first, it means that mediation is a process parties should definitely consider, because it gives them the ultimate control over the outcome. A mediator cannot make a party settle if the party does not want to settle. Second, it means that parties should have a little flexibility in mediation and with regard to settling. The system is not perfect, and will not always reach the result you believe it should. The old saw that "a bird in the hand is worth two in the bush" may be something you should consider.

For more information and thoughts on mediation, please read the rest of the blog, and visit www.watkinsmediation.com, or the mediation pages at www.ctflegal.com.