Mediating the $1 Billion Case.
We were engaged to mediate a $1 billion case concerning allegations harkening back years.
The mediation bristled with issues about three sorts of general commercial liability (“GCL”) policies, what the law says about policy language, the interplay of layers of insurance coverage, choice of law, and statutes of limitation and repose.
MEGA LITIGATION IS A HUMAN DISPUTE. HUMANS START IT. HUMANS FIGURE IT OUT.
People watching mega litigation from a safe distance wonder what it takes to mediate and settle cases that make headlines. Is there some antique Delphic manual that gives us a roadmap? No. Are the mediators supernatural? Emphatically, no.
MEGA CASE MEDIATION IS HUMAN-SCALE.
Mega case mediation is intimate. Typically, meetings convene in conference rooms among a few people. This is counterintuitive given the money at stake, but as with armistice after a great war, in mediation, whole armies of adversaries commit themselves to their preferred resolution with one voice, uttered by one person they have appointed to speak it. Conference tables, not arenas, are where the few indispensable negotiators meet.
MEGA LITIGATION SETTLES WHEN MEDIATORS STRIP MEGA DISPUTES TO THEIR OUTCOME-AFFECTING ESSENTIALS.
Martin H. Fischer, the German-born, American physician, scientist, professor, and author said, “Knowledge is a process of piling up facts; wisdom lies in their simplification”. Mega case mediation is about the application of “wisdom” to resolve conflict. In mediation, “wisdom” is the prudential inspection of the few outcome-changing facts and the simultaneously relentless illumination of risk.
MEGA CASE MEDIATION IS NEVER EXTEMPORANEOUS.
Mega case mediation asks litigants to know why they are mediating and to embrace the process. In the, “Are We There Yet? Can we pick the perfect time to mediate?” edition of our, “This Is Mediation” newsletter (https://www.linkedin.com/pulse/we-yet-can-pick-perfect-time-mediate-tim-mara-j-d-ll-m--10pie/?trackingId=e6az8jw%2BRC2NabOyNOKG5Q%3D%3D) we discussed the efficacy of mediation when disputants know their cases and know why they are voluntarily mediating. Purposeful negotiators are successful negotiators.
MEGA CASES VOLUNTARILY SETTLE BEFORE TRIAL
Many times a year in America, we read headlines announcing another billion-dollar, even multi-billion-dollar voluntary pre-trial settlement of a litigated case; proof that cases about colossal liability voluntarily resolve prior to trial.
The recent mega-case pre-trial settlements list is a who’s who of headline grabbers:
(i) The National Football League Players Association brain injury claims settlement;
(ii) Dominion Voting Systems v. Fox New Corporation, et al. (about defamatory statements);
(iii) Twitter, Inc. v. Elon Musk (about Musk’s decision to renege on his promise to buy the company);
(iv) The national opioid litigation settlements with Janssen Pharmaceuticals, Cardinal Health, McKesson Corporation, Cencora (formerly “AmerisourceBergen”), Teva Pharmaceuticals, Allergan Pharmaceuticals, CVS Health., Walgreens Boots Alliance, Walmart, Inc., and Kroger Co.;
(v) Burnett, et al v. National Association of Realtors, et al. (about non-negotiable fixed commissions in real estate sales and agent access to the multiple listing service);
(vi) In re: Facebook, Inc. Consumer Privacy User Profile Litigation (about the improper dissemination of user’s private information);
(vii) In Re Google Play Store Antitrust Settlement with state attorneys general of California, North Carolina, New York, Tennessee, and Utah, Alabama, Georgia, Hawaii, Illinois, Kansas, Maine, Michigan, Ohio, Pennsylvania, South Carolina, Wisconsin, Wyoming, Puerto Rico, and the U.S. Virgin Islands (about Google’s treatment of App developers);
(viii) The consolidated class action In re: Norfolk Southern Train Derailment in East Palestine, Ohio (about toxic chemicals spilled from punctured tanker train cars and toxic smoke from chemical fires);
(ix) In Re: Boy Scouts of America (sex abuse claims);
(x) House v. The National Collegiate Athletic Association, Inc. (the Division I college athlete “get paid to play” case).
Altruism played no role in negotiations in these ten immense cases. Nobody did anyone any favors in these widely publicized voluntary settlements. Litigants settled against the ticking clock because the risky prospect of titanic verdicts was real, the settlement sums were proportionate, ongoing reputation harm was certain, and costly protracted litigation was diverting defendants from their core business or charitable mission.
WHAT MAGIC IS THIS?
Why are mega case mediations fruitful? Because Martin H. Fischer’s “wisdom” maxim is bona fide. Mega litigation settles when mediators strip mega disputes to their outcome-affecting essentials.
In the end, only a few issues are genuinely outcome-determinative. Culling issues is vital if settlement is the goal. Talented mediators focus on trees, not whole forests.
SETTLEMENT SUMS MAY BE IMMENSE, OR MODEST. NO MATTER. ALL SETTLED CASES WEND THE SAME PATH.
We have mediated cases of all sizes, nationwide. In our experience, big and small cases settle, or not, because litigants know, or do not know why they are mediating, feud about only the small number of genuinely outcome-determinative issues, or indiscriminately bicker about all the issues, no matter their relevance, and understand, or not, the risks attendant to deadlocking at settlement. In this endeavor, a patient, albeit relentless mediator who listens, learns, counsels, and motivates, is indispensable. Litigation, mega or otherwise, is a human dispute. Humans start it. Humans figure it out.
3Chairs CAN HELP YOU
Every year, tens and tens of millions of us start our fights in court and ninety-five out of one hundred of us, voluntarily take the mutually agreeable settlement off ramp, long before our trial lawyer picks our jury. Mediation works, and almost all of us choose it.
We look forward to answering your questions and helping you with your full or half-day mediation. Contact us:
3Chairs Mediation Group, Inc.
(855) 3Chairs I (855) 324-2477