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1 Am. J. Mediation 1 (2007)
The Case for Mediated Case Management

handle is hein.journals/amjm1 and id is 5 raw text is: THE CASE FOR MEDIATED CASE MANAGEMENT1 Lawrence M. Watson, Jr. Mediated Case Management is a process specifically designed to cost effectively and rationally deal with the complex, multi-party, multi-issue, or high-end litigation that seems to evolve from many construction disputes. Lawsuits that consist of a series of often interrelated technical fact issues involving the conflicting interests of owners, designers, engineers, prime con- tractors, trade contractors and vendors. While the concepts presented here are thus particularly suited for construction cases, Mediated Case Management programs could also prove useful in cases with similar characteristics involv- ing other areas.2 The underlying premise for a Mediated Case Management Program is simple. It is an unfortunate (but almost inevitable) aspect of resolving a dispute through litigation that time and money will be spent in what might be called process debates. 'Process debates are procedural arguments that seem to erupt and flourish in complex cases. They can involve a wide range of peripheral issues. They are always focused on the litigation process (the way we are going to argue) rather than the subject of the lawsuit (what we are arguing about). These process debates may involve subtle and academic argu- ments over such things as; venue, jurisdiction, sufficiency of pleadings, appli- cable law, discovery protocols, qualification of witnesses, conflicts of inter- est, scheduling, and cost sharing. In particularly adverse cases, disputes over the time of day, and who picks up the lunch tab will get into the mix as well. There is no denying many process disputes can be very important - often affecting, to one degree or another, the ultimate outcome of the law- suit. Ostensibly, the purpose of the rules controlling how we argue in court (which are usually at the heart of process debates) is to protect the integrity and validity of the end product of the argument - the courtroom judgement or verdict rendered. Theoretically, if all the rules are followed, positional argu- 1 The substance of this article was presented in a panel program sponsored by the Construction Litigation Committee during the Litigation Section's Annual Meeting in Dallas, Texas April 16, 1999. The program featured The Honorable David Horowitz, a trial court judge with the Los Angles County Superior Court who also serves as the Section's Liaison to the ABA Judicial Division, and Celeste M. Butera, of Rivkin, Radler & Kremer in Uniondale New York who serves as Co-Chair of the Section's Litigation Management and Economics Committee. The author is grateful for their important contributions. 2 In the course of the Committee program Judge Horowitz suggested that lower value cases ($100,000 range) are also in desperate need of a cost effective management processes as well, and that the real challenge would be to adopt Stipulated Case Management techniques to those lawsuits. Lawsuits with issues valued in the lower ranges can benefit from Stipulated Case Management Programs that use one or two components of the procedures described herein.

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