Mediation/Settlement Conferences
Reducing the Pain and Suffering in Tort Litigation by the Honorable Howard S. Chasanow
Howard S. Chasanow, Judge, Court of Appeals, 4th Appellate Circuit (Prince George’s County), January 17, 1990 to August 15, 1999. Member, Article 27 Revision Committee, 1992-; Maryland Commission on Criminal Sentencing Policy, 1996-99. Former chair,
Maryland Sentencing Guidelines Advisory Board. Former member, Court of Appeals Standing Committee on Rules of Practice and Procedure (former chair, criminal law subcommittee). Retired August 15, 1999. Member, State Commission on Criminal Sentencing Policy, 1999-2000. Assistant and Deputy State’s Attorney, Prince George’s County, 1963-69. Associate Judge, District Court of Maryland, District 5, Prince George’s County, 1971-77. Chair,
Criminal Law Committee of Maryland Judicial Conference, 1976-79. Associate Judge, Prince George’s County Circuit Court, 7th Judicial Circuit, 1977-90. Born in Washington, DC, April 3, 1937. University of Maryland, B.A., 1958; University of Maryland School of Law, J.D., 1961; Harvard University Law School, LL.M., 1962. Admitted to Maryland Bar, 1961. Served in U.S. Air Force. Member, Maryland State Bar Association (former chair, judicial administration section; criminal law section). Former director, Prince George’s County Bar Association (former chair, professional ethics committee, 1973-78). Lecturer, University of Maryland School of Law, 1973-; faculty member, National Judicial College, Reno, Nevada, 1980-; American Academy of Judicial Education, Washington, DC.
The use of alternative dispute resolu- tion as a substitute for court or jury trials may be the most civilized improvement to the way we resolve tort claims since court and jury trials became a substitute for trial by combat. Although there are many forms of alternative dispute resolu- tion that are used in all varieties of legal disputes, this discussion will focus on the use of settlement conferences and media- tion in resolving tort cases. My enthusiasm for settlement conferences stems from the fact that, going back over the 30 years I was a judge, I have difficulty recalling a single trial where both sides left the court- room satisfied with the verdict, but with settlement conferences it happens in al- most every case. Contrary to a popular saying, a successful settlement is not one where both parties are equally unhappy with the settlement. A successful settle- ment conference is one where both sides recognize they have reached a reasonable compromise and, even if they did not get the result they hoped for, they are satis- fied with the result because they have closure and have avoided the uncertainty, the anxiety, and the expense of a trial and potential appeal. Most litigants also de- rive some satisfaction from playing an active part in reaching the decision that
resolves their case rather than entrusting the decision to six people whose primary qualifications are that they are licensed to drive a car.
Mediation vs. Settlement Conference
When we use the term “mediation” we often include both mediation and settle- ment conferences, but technically, at least in the Maryland Rules, there is a differ- ence. Mediation is defined in Rule 17-102 (d) and Settlement Conferences are defined in 17-102 (h). The primary differences between the two are that a settlement conference facilitator may take a more active role, may give a case evalu- ation, and may make a recommendation. Both forms of dispute resolution can be equally effective. Mediation is perhaps the preferred alternative where the par- ties have an ongoing relationship and need to enhance their own abilities to work out existing and potential disputes. A settle- ment conference may be the preferred alternative where a litigant has unrealistic expectations about the probable outcome or needs an assessment of the case by an experienced neutral. Often retired judges and senior members of the bar conduct settlement conferences because their ex-
perience and stature may add credibility to their evaluations and recommenda- tions. Mediation requires the same ability to communicate and listen as well as good people skills, but legal expertise and ex- perience are less important. As might be expected, the retired judges and senior members of the bar who conduct settle- ment conferences often charge more for their services than many mediators. Care- ful thought should be given to whether to select mediation or a settlement con- ference and cost should be a consideration, especially in smaller claims and cases where the parties are close to resolution. Also keep in mind that FREE mediation and settlement conferences by highly qualified people are available in the federal courts and in many circuit and district courts.
When to Hold a Settlement Conference or Mediation
The decision when to hold a settle- ment conference or mediation should balance the need to know more about the opponent’s case against the relative cost of discovery. When the basic facts or con- tentions concerning liability and the economic damages are apparent, there is little benefit in extensive and expensive discovery prior to scheduling mediation or a settlement conference. The money saved on discovery can be put to better use as part of the Plaintiff’s recovery. In some cases, as for example a claim against a hospital for a fairly obvious breach of the standard of care, mediation or settle- ment conferences should be considered before suit is filed and before expensive experts are retained to render opinions on undisputable issues. In other types of cases where full discovery is necessary, my ex- perience has been that the mediation or
20 Trial Reporter Summer 2003
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