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Does State Trial Court Procedural Laxity Contribute to State Court Mediation Failure?

January 8, 2016

Why does my mediator’s “success rate” in my Federal mediations seem so significantly higher than those I mediate in State Courts? (Other fellow-mediators report this same comparison observation.)

I think I know the answer, but it may be heresy to most trial lawyers for me to mention it. And, thus I understand why I write about this with some reluctance.

As a long time litigator, frequently being paid on a contingency fee basis, personally I frankly tried to avoid Federal Court like the plague.  As a litigator, among other strongly held beliefs, I deplored my personal perception of my total lack of control of the process, including the timing/calendar of the progress of my dispute .  And, I particularly disliked the lack of easy access to the ear (and heart?) of my actual final presiding Federal judge when compared to my State court judges.

Admit it, State court litigators know that most State Court judges, if properly approached, will grant them substantial leniency in relief, repetitively, on almost any of the general rules of procedure and even upon their own specific orders.  The Rules of Procedure and even detailed and specific State court orders are  also routinely violated in spirit, if not in fact, by litigators on both sides with little real risk of sanction or accountability.  How many of those same litigators would dare do the same in any comparable Federal case?

And the firmness of any trial date setting is equally incomparable.

Trial date continuances in State courts are commonly described as “each side will always be entitled to at least one”.  And, many times, continuances are too many State court judges first choice for “punishment” as opposed to all other available sanctions.  How many continuances requested in Federal Court have you ever received?

Even deadlines of specific State court trial and pretrial orders by a given judge are routinely ignored, anticipating that judicial leniency by that ordering-judge will be obtained upon almost any attempt at “explanation”.  (Possible reasons for such observed leniency will have to be the subject for another day.)

But, in my personal retrospect, I must admit that the “efficiency” of the Federal trial court (now, perhaps even more than then) certainly contributed to a more timely final resolution  by settlement or trial, at far less cost and time than found in the comparative laxity I, personally and professionally, enjoyed in almost any State court.

What efficiency?

In my view:  Procedural.   And, only because the judges and the system that apply the litigation procedures in Federal Court are far less lenient with lawyers than in the State courts.  Ironically, in Florida, our State Rules of Civil Procedure mirror the Federal Rules of Civil Procedure.  Thus, it is generally only their use and interpretation by the respective  judiciary that so dramatically differs their impact and thus contributes to the leniency.

What leniency?

In my view: Lack of finality.  Mediation success demands as much procedural finality as possible to promote informed voluntary resolution as the better alternative to trial.  State Courts are known for their foreseeable lack of enforcement of procedure, even their own orders governing court procedures, published deadlines and trial date settings.  There is no such belief in Federal Court.

At the least, in order for mediation to have its maximum opportunity to work,  it is well-known that all of the parties must actually believe that trial, the alternative to voluntary, resolution, is relatively and firmly near.  In fact, mediation has long been described as simply identifying and then finding the best alternative to trial.  See, “Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful.”  December 19, 2010.

Accordingly, any factor that alters the clarity of the case progress and the immediacy of trial, directly alters the effectiveness of mediation.

For example, few Federal litigators really believe they can easily obtain a continuance of any finally set Federal trial date.  And, by the time most federal mediations are held, it is also extremely rare that full discovery is not totally complete.  And, usually all motion practice is long gone!

In state court mediations, some of the most common rationale avoiding good faith negotiation that mediators hear, include, “the court is going to grant (our/their) (pending) motion for continuance” or “we still have a lot of discovery to complete”, or ” we are waiting to disclose (you name the alleged surprise) depending on what happens today”, etc.

Once even one side of any negotiation/mediation truly believes they will have “another bite at the apple” if they don’t get their way that day, mediation/negotiation is effectively done for that day.

Thus, with the State court judges’ “historical”  bending/laxity of civil procedure and their own specific orders they ironically undermine the efficiency of the very mediation-resolution process that is specifically designed to lighten their case load!

But, worse, most litigators personally and professionally WANT that State Court laxity; and thus this forseeable cycle in State Courts probably will not end, soon.

Although, personally, I am pleased to mediate as often as it is necessary to help the parties avoid trial, and there are certainly good reasons for some mediations well before the total cost of full preparation for trial becomes necessary, in a review of the central resolution purposes of mediation, for the overwhelming volume of most disputes the priority of all mediations should include firm court procedures that permit the parties to voluntarily resolve their dispute by  knowing that all available fact and law in any future trial is known and fixed and their firm and imminent trial is NOT the better alternative to their prepared mediation negotiation.

Judicial leniency should never be allowed to be even a contributing cause of mediation failure in our State courts.

When is the last time you had more than one Federal mediation?

Just saying.

Dan, from Winter Park-Orlando, Florida.  And, Happy New Year!


4 Comments leave one →
  1. Gregg Toomey permalink
    February 4, 2016 7:49 pm

    I’ve had a couple hundred cases in 10 to 12 circuits, and more in the three federal districts. Add to that appeals in, I think, 4 DCAs, a bunch in the 11th and a few in the Supreme Court, and I’m a survey in one person.

    I agree there are differences between state and federal litigation, but not necessarily the same as you recognize. But, first, I will answer your question: I have never had a second mediation in a federal case. A couple times, I had a settlement conference with a federal magistrate following mediation, but they were not fruitful. I think I once mediated a state case 5 or 6 times.

    One difference is that the federal system gives the parties latitude in determining the pretrial schedule, and expect the lawyers to live with their decisions. At the beginning of each case, the lawyers submit a case management report, which is guided by local rules regarding how long pretrial efforts should take depending on the complexity of the case. Then, the lawyers determine the path of proceedings. I don’t think I ever had a federal judge refuse the schedule agreed to by the lawyers. They just expect us to live up to our end of the bargain. We get enlargements of the schedule when necessary: the courts will expand everything, including trial if there is a basis. However, you might want to think about asking for this twice. Again, the judges expect we will live up to the bargain.

    In state court, I sometimes get a schedule requiring mediation within 90 days of the case being at issue. Mediation then is useless, except where liability is clear. The threat is the case goes to nonbinding arbitration, which is really mediation in another guise. However, some circuits now require lawyers to submit a case management plan, so they are moving toward a system where the lawyers decide when the case is ready for trial.

    Another difference is federal practice is more deliberative than state practice. Virtually everything in federal court is written. If a judge sets a hearing, it’s always in the back of my mind that one of the lawyers screwed up, and I hope it isn’t me. The parties submit memoranda, and the judge makes a decision, sometimes months later. In state court, motions are usually decided in minutes. A lawyer would have to be a pure knucklehead to file a motion regarding a minor discovery dispute in federal court. In state court, it happens all the time. I can count on three fingers the number of motions I’ve filed regarding discovery in federal court.

    So, what does all this have to do with mediation? Plenty. Mediation in federal cases should, except in cases of certain liability or non-liability, occur after summary judgment motions are filed, and a response has been made. According to the pretrial schedule, the only filings after these events will be motions in limine(sometimes filed with summary judgment motions), the stipulation and jury instructions. By that time, all the work has been done, and the parties know their vulnerabilities. More important, they know what the other side sees as their vulnerabilities. Federal courts take summary judgment motions seriously, and the parties know that is true. At that time, bravado is gone, and the parties must deal with realities, not bluster.

    In state court, there is no point where settlement at mediation is that compelling.

    • February 7, 2016 3:17 pm

      Gregg, thanks for your thoughtful insight from such an experienced position. I, too, obviously believe it is the timing and relative finality of Federal trial courts procedures and orders to those in many State courts that add such relative success to Federal mediation. When “all the work is NOT done”, too often the parties simply will not concede “their vulnerabilities” at THAT mediation. Dan

  2. David Henry permalink
    January 9, 2016 2:37 pm

    You raise an interesting question about success rates in state v federal. I am going to keep track and maybe we can get a study done under the auspices of a bar committee. I agree with your observations over the “threat” of trial and no continuances, but I would also suggest we consider whether the increased likelihood of obtaining summary judgment in federal court would tend to influence plaintiffs in dubious cases to settle. (But then again also embolden defendants not to settle – cuts both ways right?)
    Dave Henry, Orlando

    • January 10, 2016 9:57 am

      Thanks for your thoughtful comment. IMO, any unresolved dispositive motion, State or Federal, reduces mediation success. Both sides believe they will prevail, but only one side will! IMO, every “question” that remains outstanding at mediation always becomes the enemy of resolution at that mediation.

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