Fisher Mediation
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Early Case Management

by Paul Fisher, Edited by Judith Stalk

Early Case Management, ECM, is an efficient and economical opportunity for counsel who want to make progress in moving a case toward resolution. ECM can be used to facilitate the voluntary exchange of information, documents and other things, scheduling discovery and most any other matter required by Calif Rules of Court 212 and FRCivP 16, in addition to issues not contemplated by those case management rules. If service to your client means progress toward resolution, use Early Case Management to provide the best service. Much of this article is the product of interviews with many attorneys and mediators.[1]

When and for whom would ECM be appropriate and beneficial?

When all sides want to make progress, a case can benefit from ECM. When there is a minimum level of communication between attorneys but the level is not sufficient to allow counsel to resolve procedural, discovery or other issues, ECM can be a boon. In those cases in which attorneys have difficulties with their clients and need an additional tool to manage their cases, ECM can mean the difference between resolution or not.

However, ECM is not for all cases nor for all attorneys. Attorneys who have a high level of communication with each other, who have good client control, and who are able to cooperate and work through all issues with opposing counsel to bring the case to resolution, do not need ECM. In cases in which at least one of the attorneys prefers not to participate cooperatively, ECM would not be productive. One attorney interviewed opined that if the neutral charges for this service, some counsel will not want to have the client incur the added expense. The additional expense, if any, must be weighed against the benefit of the process. On the other hand, some counsel may view the process as an opportunity to participate in a billable event. One plaintiff’s attorney interviewed feels ECM will not work where insurance is a factor since, in that attorney’s belief, the culture of insurance defense counsel is to delay resolution or trial of the case. However, while one insurance defense counsel interviewed confirmed this, another insurance defense counsel believes ECM is an additional tool to facilitate progress toward resolution, especially in complex multi-party cases, including construction defect litigation.

Benefits of Early Case Management

California Rules of Court, rule 212, requires all cases to have a first case management conference, CMC, not later than 180 days after the case is filed. (See Federal Rules of Civil Procedure 16 and 26 on timing of CMCs in federal courts.) Theoretically, California and FRCivP rules authorize judges to aggressively move cases along through the use of CMCs. If there is a high level of communication between counsel, then the CMC adds little by way of a venue for communication. However, if there is little communication between counsel, the CMC is a rare opportunity for communication on key issues. Attorneys use the opportunity of a CMC to discuss critical issues with each other, sometimes for the first time. However, a number of attorneys interviewed for this research believe there is a major distinction between USDC and Superior Court CMCs. These attorneys have found that USDC judges carefully adhere to the Federal Rules and have created a culture in which attorneys know those rules are followed in federal courts. As a result attorneys in federal cases meet and confer, discuss issues and prepare and file the required CMC statements. However, these attorneys find that the quality and productivity of Superior Court CMCs varies widely, depending on the judge. These attorneys find that counsel routinely do not meet and confer to discuss issues, nor do they honestly complete required court forms prior to the CMC. Some of these attorneys describe Superior Court CMCs as “a joke” or “a waste of time” and that CRC 212 is “routinely ignored by both bench and bar” because the CMC “is not taken seriously” and “nobody cares”.

Some of the attorneys interviewed complain that some Superior Court judges do not cover all the necessary issues to make the CMC productive or worthwhile. In those instances, the judges set a mediation completion date, the next CMC date, and possibly a trial date. Frequently, CMCs are scheduled months into the future, perhaps after a mediation completion date. Many problems can occur between counsel before the mediation date that can derail the dispute resolution process. Though some attorneys find Federal Court CMCs onerous, such a culture forces attorneys to come to grips with the case, compels the attorneys to meet, confer and thoroughly prepare for the CMC, and as a result make progress toward resolution, and more quickly than in Superior Court.

Attorneys find there are deficiencies to judicial CMCs: they are costly, take a lot of time and don’t occur when counsel want them to. They are costly in terms of the time counsel must take to travel to the court house, wait until their case is called, and then travel back to the office. All for a 5 to 10 minute hearing. That entire process can take 2 to 3 hours, or more if counsel’s office is in a different county than the court house. This is not an efficient use of attorney’s time, and since most of that time is billed to the client, the judicial CMC is expensive.

However, ECM is an economical opportunity for counsel who want to make progress but need some assistance in moving a case along. As a mediator, I am particularly interested in making sure a mediation is successful the first time out. Mediations impasse due to causes that can usually be avoided by open and frank discussions prior to the mediation. Facilitation techniques such as one on one telephone conferences before the mediation between mediator and counsel separately, or through conference calls between mediator and all counsel, or groups of those counsel sharing common issues or interests are valuable tools to keep a mediation on track.

An ECM conference can be scheduled when needed, and on short notice if necessary. An ECM conference is much more efficient than a court CMC since it can be conducted telephonically; there is no waiting in court to be heard, and no travel time. Since an ECM conference is much more efficient than a judicial CMC, it is economical for the clients, who don’t have to pay their attorney’s travel or waiting time. More importantly, since there is not the rush of a judge’s over crowded calendar, an ECM conference can thoroughly cover all the issues critical to each side.

ECM provides a graceful opportunity to quickly dispose of a case before trial. ECM can provide counsel more client control. And according to one attorney interviewed, for some counsel, they can avoid having to face the fear and risk of failure in trial. (“The Vanishing Trial”, a study conducted by Marc Galanter indicates that as only 1.8% of all cases filed in federal court are eventually tried, there are very few seasoned trial attorneys.[2]

ECM is a tool that can lead to more thorough preparation for mediation, thus increasing the likelihood of a successful mediation. ECM has the potential to provide counsel with sufficient information that empowers them to achieve resolution of disputes before mediation. ECM contains the potential for counsel to develop positive professional relationships and to build trust with opposing counsel. This in turn serves as a foundation for the pattern of reaching a quid pro quo in facilitated negotiations, which leads to progress toward resolution. One of the attorneys interviewed believes that the ability to pick up the phone to have the designated facilitator/mediator set up a conference call with all opposing counsel in complex multi-party cases, is a tool that “can be worth its weight in gold.”

ECM will not replace judicial CMCs. However, over time, the more an ECM can accomplish, the less the need for personal appearances of counsel at the judicial CMC. Under these circumstances telephonic appearances of counsel should be sufficient. How would judges enjoy such streamlined and productive case management? Judges could then devote more time to contentious cases leading to a better use of judicial time and energy. ECM has the potential of becoming institutionalized and becoming a part of the private dispute resolution culture. And it has the ability to have a significant impact on the public judicial system by resolving more disputes earlier in the process.

Best Timing of Early Case Management

The earliest opportunity for ECM might be as soon as all attorneys to a dispute have been retained, and counsel begin to face challenges in communication or cooperation. ECM is a tool for making progress in understanding the facts, law and issues, as early as before filing suit. Mediation may or may not be the objective of an ECM conference. ECM can otherwise be commenced as soon as counsel are unable to make progress toward resolution, and all counsel are interested in the benefits of ECM.

Format and Confidentiality of an ECM Conference

In order to maximize the benefit of ECM it should be confidential pursuant to Evidence Code section 1119 et seq. Communications of this nature should be considered “in the course of a mediation or a mediation consultation (and) shall remain confidential.” [section 1119(c)]. (See comparable Federal Rule of Evidence 408.) A stipulation re confidentiality should be signed by counsel and parties before commencing the ECM process.

To start the process, counsel who have agreed to use ECM contact a neutral facilitator/mediator. A conference call is convened by the facilitator/mediator with all participants to orient the facilitator/mediator to the basics: parties, counsel, issues and process. If beneficial under the circumstances of the case or issues, the facilitator/mediator may have brief telephone conferences with each counsel separately. Each counsel then circulates a proposed agenda for the ECM conference, and the facilitator/mediator issues a final agenda based on the proposed agendas of each counsel. In this way a structure for the process is established with the assurance that interests of each counsel will be addressed. An Early Case Management conference is then held between all participating counsel and the facilitator/mediator with the objective of reaching a facilitated agreement on all issues raised by each counsel.

Needless to say, appearances by lead trial counsel are most productive and appearances by associates or contract counsel would be prohibited. In other words, only counsel with complete authority to bind their clients should participate. Anything less would lead to an unproductive ECM conference, and a mere repetition of what some attorneys now find in Superior Court CMCs.

Documentation and Enforcement of Agreements

Judicial CMCs conclude with a court minute order or a notice of ruling prepared by one of the attorneys. Before the conclusion of an ECM conference counsel can offer to prepare a written stipulation or have the facilitator/mediator prepare the stipulation. If one of the counsel prepares the proposed stipulation, the fastest way of circulation would be by E-mail with a reply “agreed” by all other counsel. However, if there is lack of agreement on language, a follow up telephone conference with the facilitator/mediator would allow counsel to work through the language. Whether the facilitator/mediator prepares the stipulation may be of some controversy among mediators. Many mediators prefer not to prepare the settlement agreement following a mediation. The same reluctance may take place by the facilitator/mediator at the conclusion of an ECM conference. However, some of the attorneys interviewed believe the fastest and easiest way of documenting the agreements reached during an ECM conference is for the facilitator/mediator to do it contemporaneously with the conference call, discussing the language during its composition, and then immediately emailing it to all counsel for agreement. However, the same outcome could be achieved with one of the attorneys drafting the E-mail stipulation before the conclusion of the conference call. The degree and manner of enforceability of the stipulation is the same as any other written stipulation, as determined by counsel, not by the facilitator/mediator.

Costs

The time necessary for an ECM telephone conference depends on the number of attorneys and issues, and the amount of time necessary for preliminary telephone conferences between the facilitator/mediator and each counsel. One attorney interviewed believes ECM is a good long-term investment, and is as valuable as a mediation, depending on if it is successful or not. Some attorneys believe ECM is best suited for larger, more complex multi-party cases.

Conclusion

As of this writing, Early Case Management is a “work in progress”, its potential limited only by the creativity of the attorneys and facilitator/mediators who elect to utilize it. Much of this article is the product of interviews with many attorneys and mediators. Your contributions and comments are invited. E-mail directly to paul@fishermediation.com.

Endnote:

  • 1. Copyright by Paul Fisher, 2004.

  • 2. The Galanter study was prepared and first presented as a working paper at the ABA Litigation Section’s Symposium on the Vanishing Trial, in San Francisco, December 12-14, 2003. Co-presenters at the Spring 2004 CPR Conference were Daniel J. King of Atlanta and Patricia Lee Refo of Phoenix.

    Grateful acknowledgments are extended to the many attorneys and colleague mediators interviewed and with whom I brain stormed these issues. I am especially grateful to Judith Stalk for her extraordinary editing, and to my son, Brett, whose inspiration led to this research and article.