Oklahoma Bar Journal
The Development of Mediation Practices in Oklahoma
By R. Lyle Clemens
In 1986, commercial mediation practices were in their infancy in Oklahoma. Before then, mediations were primarily conducted by administrative agencies and commercial businesses. The insurance industry was the first to acknowledge the commercial benefits of mediation, as mediation helped clear out a backlog of small insurance claims resulting from auto accidents and homeowners’ claims.1 These claims often sat for prolonged periods without the stimulus to proceed to a conclusion. It was proposed the way to move these claims was to create an “event” to bring the parties together. This event was mediation.
Early mediation programs were billed as “mediation marathons.”2 These marathons were conducted over a period of two days, and sometimes more than eight mediations were scheduled and assigned to a mediator.3 Mediation events succeeded in bringing resolution to files that had long been dormant. The marathons were a resounding success, settling many of the cases in less than one hour and spurring the commercial popularity of mediations. Due to this early success, insurance companies were convinced resolving disputes with the help of mediators could be both efficient and profitable. Mediation could not only resolve backed up dockets, but many cases could also benefit from the insight of skilled intermediaries. At this time, many insurance companies were abandoning the traditional relationship they had with defense firms and were moving the defense of many cases “in house” to captive law firms.4 With these captive firms receiving large volumes of case files, mediation became a good way to settle cases at an early stage in the litigation process while cases with multiple parties and complex factual and legal issues continued to be handled by traditional defense firms.
Federal courts also began to recognize the value of mediation to keep their civil dockets manageable. In 1991, the 10th Circuit implemented a mediation program directed by the Circuit Mediation Office.5 The office randomly selects civil cases on the circuit’s docket and assigns them court-mandated mediation.6 The Western District of Oklahoma also adopted a court-mandated mediation program, providing parties who were required to participate with a list of court-approved mediators.7 A court “alternative dispute resolution coordinator” was appointed to monitor the implementation of the program, and mediators were required to report the results of each mediation.8 Mediator reports provided data proving mediation was incredibly effective at resolving cases without the costs of the courtroom.
ROLE OF THE COURTS
During the formative period in the adoption of mediation as a legal tool, there was much discussion about the role the courts would play in the mediation process. Much of this discussion centered around mediator certification. Certification was proposed as a safeguard to ensure parties would receive competent mediation services.9 The certification process would have limited the amount of “certified” mediators to individuals who were approved by a group with the power to grant the designation.10 Certification is regarded by many mediators and attorneys as unnecessary.11 Unlike a typical consumer transaction, mediators are selected by a sophisticated market of experienced trial attorneys. The demand for mediators by these attorneys determines who will succeed and who will fail in the practice of mediation.12 Certification adds little if anything to this dynamic, further regulating an already selective market.
Another proposed plan to involve courts more in the mediation process was to provide a list of mediators who were “qualified” by the district courts.13 There was much discussion as to whether it was appropriate to have a district judge order cases to mediation or select a mediator for the parties. In other jurisdictions where the court had the power to do so, the appointee was often a retired judge or someone the appointing judge had a relationship with.14 To ensure fairness in the selection process, Oklahoma adopted the District Court Mediation Act in 1998.15 The act set forth requirements for mediators who wished to be “qualified” but prohibited any court rule that would undermine the parties’ choice of mediator, allowing parties to “select a mediator not identified on any list of qualified mediators maintained by the district court.”16 This legislation left the selection of mediators to the free market, encouraging a robust and active roster of talented mediators to provide the best possible service to attorneys and their clients.
MEDIATION BENEFICIAL TO PLANTIFF’S BAR
While the initial demand for mediation was driven mostly by the defense bar, mediation also was and continues to be very beneficial to the plaintiff’s bar. Often, mediated cases are represented by an attorney on a contingency fee basis.17 This contingency arrangement provides the plaintiff’s attorney gets paid out of the proceeds of a resolved case. An early resolution reduces the time expended by the attorney and the costs associated with protracted litigation while still ensuring payment. Early settlement is beneficial to the client because costs are reduced, and the award can often be collected much faster. Perhaps the biggest benefit of mediation to plaintiffs is the plaintiff has direct input on whether the case is settled or tried. Every plaintiff and their circumstances is unique, although risk tolerance and the motivation for settlement varies between them. The opportunity mediation affords plaintiffs is direct input into the decision-making process of their case, which leads to happier clients who are more satisfied with the representation they receive.
For many clients, a lawsuit is usually their first exposure to the civil justice system. The litigation process is confusing and frustrating to most. Clients do not understand why cases take so long, and the process of discovery is invasive and overwhelming. The necessary elements to “prove” a case are foreign to them. Prior to mediation being utilized as a method of settlement, the client was not exposed to a neutral party who could explain the legal process and outline available options. At mediation, each party has the opportunity to ask questions and acquire an understanding of the reasons for depositions, interrogatories, expert witnesses and the burden of proof. If elements of the case are lacking, the mediator can educate the party on the risks the absence may pose. This third-party dialogue leaves the attorney to advocate for their client without seeming adversarial or skeptical, ensuring the client does not question counsel's loyalty to the case. It is easier for an attorney to agree with a mediator’s evaluation than to disagree with the client.
The advent of the use of mediation has materially transformed the practice of law. In some areas of practice, the use of mediation has become so routine that attorneys seldom need to be ordered by the court to participate, instead initiating mediation themselves. This acknowledgment of the value of mediation has also caused lawyers to refrain from direct negotiation themselves because they anticipate a mediation event will soon be forthcoming.
Arguably, the common ending event of litigation has shifted from a jury trial into a successfully negotiated settlement at mediation. Many mediators in Oklahoma successfully settle more than 90% of the cases they take.18 This high settlement rate encourages the lawyers involved in litigation to put significant effort into preparing cases for mediation. Mediation preparation limits the number of depositions taken and discovery conducted and focuses instead on gathering the information needed to evaluate the case. Because there is no jury to persuade, the presentation is often for the benefit of an insurance adjuster or, where insurance is not involved, a risk manager, and attorneys can adjust their arguments accordingly.
Whether a case requires extensive knowledge of product liability, negligence torts, contracts, employment, oil and gas, trusts, estates or family law, there is a mediator who has experience in that area and can deftly assist in the resolution of the dispute. Many mediators are experts in multiple areas of the law.19 However, the complexity of certain areas of litigation makes it desirable for a mediator to develop a niche market that allows them to shine in a single area of expertise.20 Once this niche is well established, many lawyers become repeat customers as they too specialize in one type of law and appreciate the services of a mediator who is well-versed in that area.21 Often, one side is familiar with a mediator while the other party has not worked with them before. It is not uncommon for the unfamiliar party to contact the mediator prior to scheduling mediation to become comfortable with the selection.
I have conducted mediations in 48 states, and in almost every case, I have pre-mediation discussions with the unfamiliar party to ensure the best possible experience for everyone involved. Perhaps the best way to select a mediator is by the recommendation of other attorneys. Opinions certainly vary on this topic, and it is not difficult to find attorneys with both favorable and unfavorable impressions of a well-known mediator. Every mediator has a distinctive style. Not unlike a client’s selection of an attorney, mediation services are personality driven. A mediator’s resolution style can range from iron-fisted to velvet-gloved, and every attorney will have a preference. Regardless of style, a high success rate is ultimately what drives the demand for mediation services. A resolved case is often the best indicator of a skillful mediator.
THE FUTURE OF MEDIATION
Given the increase in use and acceptance of mediation in the past few decades, what does the future of mediation hold? Methods of conducting mediation are evolving to better accommodate clients. Online mediation services are already growing at unprecedented rates.22 While face-to-face interaction allows mediators to better access the personalities and needs of the parties, which can be crucial to a mediation’s success, online services have some notable benefits. Online mediation allows parties to negotiate from their own homes, where they are likely more at ease.23 The lack of travel also eliminates costs and provides for more flexible scheduling, which, unconstrained by geographic location, can lead to earlier resolution of a case.24 The types of cases that will see an increase in mediation rather than litigation in years to come are also changing.
Family law disputes, like divorce cases, are seeing an increase in parties choosing mediation over a drawn-out court battle, even as those cases become more complicated.25 Mandatory mediation for workers’ compensation claims is becoming increasingly commonplace as companies seek to avoid the courtroom, driving the need for mediators well versed in the nuances of those claims.26 Recently, after multiple tribal nations in Oklahoma sued Gov. Kevin Stitt over casino gaming compacts, a federal judge sent the dispute to mediation.27 New developments at the intersection of tribal and state law may result in an increased demand for mediation in these areas.28
Mediation in Oklahoma has changed in significant ways over the last 40 years, evolving from an unconventional means of conflict resolution into a commercial product widely accepted and utilized.29 The advent of COVID-19 and the subsequent shutdown of courtrooms across the country will likely encourage more parties to look to mediation to solve their disputes as quickly and inexpensively as possible. This shutdown has served to exacerbate both American’s growing mistrust in the justice system30 and further back up dockets from a recent spike in lawsuits.31 Both of these issues can be addressed, at least in part, by nontraditional dispute resolution methods. In the future, lawyers, clients and mediators alike can expect to see an acceleration of the trend in the legal community away from adversarial litigation and toward the continuously developing practice of mediation.32
ABOUT THE AUTHOR
R. Lyle Clemens is an AV-rated attorney whose practice emphasizes mediation and arbitration services. He has been a leader in the field of ADR since 1986 when he was appointed to the board of mediators for the Oklahoma Mediation and Arbitration Services. He has conducted more than 4,500 mediations.
- Johanna Knapshaefer, “Insurance Claims Mediation Cuts Time, Costs for Allstate,” The Journal Record (Dec. 16, 1989).
- Robert H. Mnookin, “Negotiation, Settlement and the Contingent Fee,” 47 DePaul L. Rev. 363, 365 (1998).
- Harvey D. Ellis Jr., Clyde A. Muchmore, Oklahoma Practice Series §26:185 (2019).
- W.D. Okla. Loc. Civ. R. 16.3.
- Art Hinshaw, “Regulating Mediators,” 21 Harv. Negot. L. Rev. 163, 172 (2016).
- Donald T. Weckstein, “Mediator Certification: Why and How,” 30 U.S.F.L. Rev. 757, 776 (1996).
- W. Lee Dobbins, “The Debate over Mediator Qualifications: Can They Satisfy the Growing Need to Measure Competence Without Barring Entry into the Market?,” 7 U. Fla. J.L. & Pub. Pol'y 95, 96 (1995).
- Hinshaw, supra note 5, at 172.
- Roselle L. Wissler & Robert W. Rack Jr., “Mediator Performance: The Usefulness of Participant Questionnaires,” J. of Disp. Resol. 229, 231 (2004).
- Sharon Press, “Mediator Ethical Breaches: Implications for Public Policy,” 6 Y.B. On Arb. & Mediation 107, 115 (2014).
- 12 Okla. Stat. §§1821 to 1825 (1998).
- 12 Okla. Stat. §1825 (1998).
- Mnookin, supra note 4 at 364.
- Thomas I. Elkind, “To Mediate in Court or Out of Court, that is the Question,” Financier Worldwide, (Oct. 2015) www.financierworldwide.com/to-mediate-in-court-or-out-of-court-that-is-the-question#.X0VvGi2ZOqA. e.g. Alternative Dispute Resolution, United States District Court Northern District of Oklahoma, www.oknd.uscourts.gov/Alternative%20Dispute%20Resolution%20%28ADR%29 (last accessed Aug. 22, 2020). See also Jessica Notini, “General Benefits of Small Claims Mediation Programs,” Mediate.com (Sept. 2001) mediate.com/articles/notini.cfm.
- John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. U.L. Rev. 839, 844 (1997).
- Hinshaw, supra note 5, 172.
- Douglas Witten, “Video Mediation During the Coronavirus Pandemic: How Online Dispute Resolution Works,” nolo.com, (2020). www.nolo.com/legal-encyclopedia/video-mediation-during-the-coronavirus-pandemic-how-online-dispute-resolution-works.html.
- Mark D. Zukowski, “Online Mediation Goes Mainstream,” Ariz. Att'y, June 2020, 38 (2020).
- Debra Berman, James Alfini, “Lawyer Colonization of Family Mediation: Consequences and Implications,” 25 Marquette L. Rev., 916 (Spring 2012).
- Carey Worrell, “What to Expect from a Workers’ Comp Mediation Settlement Conference,” Lawyers.com, www.lawyers.com/legal-info/workers-compensation/what-to-expect-from-a-workers-comp-mediation-or-settlement-conference.html (last accessed Nov. 11, 2019).
- Steve Metzer, “Judge Sends Gaming Dispute to Mediation,” The Journal Record (Feb. 11, 2020) www.journalrecord.com/2020/02/11/judge-sends-gaming-dispute-to-mediation.
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
- Hinshaw, supra note 5, 167.
- Ron Faucheux, “By the Numbers: Americans Lack Confidence in the Legal System,” The Atlantic (July 6, 2012), www.theatlantic.com/national/archive/2012/07/by-the-numbers-americans-lack-confidence-in-the-legal-system/259458/.
- Ansa Assuncao, “COVID-19 Related Employment Lawsuits on the Rise - What Employers Should Expect and How To Protect Themselves,” (June 10, 2020) www.lexology.com/library/detail.aspx?g=3f18762b-19e8-4e7d-b57b-281e2e1fe116.
- Joseph H. Paulk, “So You Want to Be A Mediator? Realistic Considerations for Attorneys Considering Becoming Mediators,” 35 Tulsa L.J. 325, 325 (2000).
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 9 (November 2020)