LOUISIANA JUDICIAL COLLEGE AND LADC 2016 TORTS SEMINAR

Roosevelt Hotel, New Orleans, Louisiana Friday, December 9, 2016

Alternate Dispute Resolutions: The Latest on Special Masters and Mediation

JUDGE (RET.) CAROLYN GILL-JEFFERSON Professional Mediator

JUDGE (RET.) FREDDIE PITCHER, JR. Phelps Dunbar LLP

VINCENT FORNIAS Mediation Arbitration Professional Systems

E. PHELPS GAY Christovich & Kearney, LLP

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L O U I S I A N A J U D I C I A L C O U N C I LA N D

L O U I S I A N A A S S O C I A T I O N O F D E F E N S E C O U N S E L

M E D I A T I O N A N D S P E C I A L M A S T E RD E C E M B E R 9 , 2 0 1 6

H O N . F R E D D I E P I T C H E R , J R . ( R E T . )H O N . C A R O L Y N W . G I L L - J E F F E R S O N ( R E T . )

Working With the SpecialMaster in Your Class Action

STATUTORY AUTHORITY

Louisiana Revised Statute 13:4165

Federal Rule Civil Procedure 53

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COMPARISON OF STATUTORY AUTHORITY

Appointment process

Scope of duties

TYPES OF SPECIAL MASTERS

Discovery Master

Electronic Discovery Master

Coordinating Master

Class Action Master

Settlement Master

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BASIC FUNCTIONS OF SPECIAL MASTER

Case Management Serve as liaison between judge and counsel Establish discovery and other deadlines

Discovery Monitor discovery schedule Resolve discovery disputes

Settlement Serve as arbitrator, mediator, or neutral Propose framework for settlement Interpret settlement agreements Oversee allocation and distribution of funds Resolve attorneys fee issues

BENEFITS OF APPOINTING SPECIAL MASTER

Minimizes intrusion on the court’s docket

Expedites the class action

Insures timely and efficient distribution of funds

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SPECIAL MASTER AND THE CADA

CADA = Court Appointed Disbursing Agent

Court appointed

Role of CADA

Relationship between Special Master and CADA

CLASS ACTION PLEADINGS/REPORTS

Motion and Order to Appoint Special Master and CADA

Motion and Order to Approve Settlement and Notice of Settlement (Fairness Hearing)

Motion and Order for Approval of Claim Form

Filing of Special Master Allocation Report

Motion and Order for Approval of Allocation Letters

and Notice of Right to Object

Objection Hearing

Distribution of Funds

Filing of Special Master Final Report

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T R I A L J U D G E C A N N O T O R S H O U L D N O T S E R V E A SM E D I A T O R .

T H E T R I A L J U D G E M A Y B E C O M E T H E D E C I D E R O F F A C T I FS E T T L E M E N T N E G O T I A T I O N S A R E U N S U C C E S S F U L .

T H E T R I A L J U D G E M A Y N O T H A V E T I M E T O C O N D U C TP R O L O N G E D , I N T E N S I V E N E G O T I A T I O N S . I N A D D I T I O N ,

T H E N E G O T I A T I O N S M A Y R E Q U I R E T R A V E L B Y T H EM E D I A T O R O U T S I D E T H E C O U R T ' S J U R I S D I C T I O N , W H I C HO R D I N A R I L Y T H E T R I A L J U D G E C A N N O T D O .

T H E C A S E M A Y A L S O I N V O L V E T E C H N I C A L M A T T E R S T H A TS O M E O N E W I T H S P E C I A L E X P E R T I S E C O U L D M O R EE F F E C T I V E L Y M E D I A T E . I N

Using Special Master Mediator

C O N S E N T O F T H E P A R T I E S

S E L E C T I N G C A S E S F O R M E D I A T I O N

T I M I N G

M E D I A T O R S

M E D I A T I O N P R O C E E D I N G

Starting the Process

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P A R T I E S C O N S E N T I S E S S E N T I A L F O R T W O R E A S O N S :

1 . S H O T G U N A G R E E M E N T S T O N E G O T I A T E D O O MM E D I A T I O N S T O F A I L U R E ;

2 . C O S T O F T H E M E D I A T I O N A R E B O R N E E Q U A L L Y B YB O T H P A R T I E S .

Consent of the Parties

( 1 ) A H I G H L Y T E C H N I C A L S U B J E C T M A T T E R R E Q U I R I N GS I M I L A R T E C H N I C A L E X P E R T I S E B Y A S K I L L E D N E G O T I A T O RO R ;

( 2 ) C O M P L E X I S S U E S R E Q U I R I N G T H E S E R V I C E S O F AS K I L L E D N E G O T I A T O R W I T H T H E F L E X I B I L I T Y T O D E V O T EL A R G E B L O C K S O F P R O F E S S I O N A L T I M E T O T H E P R I N C I P A L SA N D O T H E R K E Y P A R T I C I P A N T S , E V E N T O T H E E X T E N T O FT R A V E L I N G O U T S I D E T H E J U R I S D I C T I O N .

Selecting Cases for Mediation

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S P E C I A L M A S T E R M E D I A T I O N , L I K E A N Y F O R M O FS E T T L E M E N T N E G O T I A T I O N , I S M O S T L I K E L Y T O S U C C E E D A TO N E O F T H R E E S P E C I F I C S T A G E S O F L I T I G A T I O N :

( 1 ) S H O R T L Y A F T E R T H E C O M P L A I N T H A S B E E N F I L E D A N DT H E C A S E H A S B E E N I D E N T I F I E D B Y T H E J U D G E A S A L I K E L YC A N D I D A T E F O R M E D I A T I O N ;

( 2 ) I M M E D I A T E L Y P R I O R T O T H E L A W Y E R ' S A R D U O U S T A S KO F P R E P A R I N G T H E P R O P O S E D J O I N T P R E T R I A L O R D E R F O RS U B M I S S I O N A T A P R E T R I A L C O N F E R E N C E ; O R

( 3 ) I M M E D I A T E L Y P R I O R T O A F I R M T R I A L D A T E .

Timing When to Appoint

P A R T I E S A G R E E O N A S P E C I F I C M E D I A T O R ;

S T R I K E M E T H O D : E A C H P A R T Y S U B M I T A L I S T O F 5 N A M E SA N D T H E N P E R E M P T O R I L Y S T R I K E U P T O 3 N A M E S ;

C O U R T P R O P O S E S T H E N A M E O R N A M E S O F A P O T E N T I A LM E D I A T O R .

Selecting the Mediator

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T R A D I T I O N A L A T T E M P T S A T S E T T L E M E N T H A V E F A I L E D .

T H E P A R T I E S A R E W I L L I N G ( A L T H O U G H S O M E T I M E S R E L U C T A N T L Y ) T OE N G A G E I N T H E P R O C E S S .

E N O U G H D I S C O V E R Y H A S B E E N C O M P L E T E D S O T H A T B O T H S I D E S A R EA D E Q U A T E L Y F A M I L I A R W I T H A L L E S S E N T I A L F A C T S A N D I S S U E S .

T H E C A S E I S C O M P L E X E N O U G H A N D T H E P R O J E C T E D T R I A L L O N G E N O U G HT O W A R R A N T T H E A D D E D E X P E N S E O F S P E C I A L M A S T E R M E D I A T I O N .

T H E M E D I A T O R P O T E N T I A L L Y C A N A C C O M P L I S H W H A T T H E J U D G E H I M S E L FC A N N O T , T H A T I S , O F F E R A P A R T I C U L A R T E C H N I C A L E X P E R T I S E O RP R O V I D E T H E T I M E A N D T R A V E L F L E X I B I L I T Y R E Q U I R E D T O N E G O T I A T EI N T E N S I V E L Y W I T H I N A N D O U T S I D E O F T H E J U R I S D I C T I O N

Rationale for Appointment

G E N E R A L L Y L E F T T O T H E D I S C R E T I O N O F T H E M E D I A T O RT O S T R U C T U R E P R O C E D U R E S F O R T H E N E G O T I A T I O N S .

Mediation Proceeding

April 201514 Around the Bar

Congratulations on acquiring your very own mediator! We know you probably worked very hard to fi nd him. Now that he or she is fi nally in your possession, please take a few minutes to familiarize yourself with his simple operating instructions to keep him healthy and happy, helping him to be everything you would ever need him to be!

(1) Avoid last-minute surprises—the classic “drive-by” issues. Do not appear at mediation with new and expensive information (such as recommended surgeries or life-care plans) that your opponent will not be able to realistically process and address. Remember that corporate defendants, and especially insurers, are slow, cynical and deliberate bureaucracies that operate and act upon timely submission of documentation. You can minimize this speed bump by simply reviewing your fi le a few weeks

Care and feeding of your mediator BY VINCENT P. FORNIAS

before the mediation to be sure that something fundamental has not been overlooked in your submission to opposing counsel.

(2) Do your best to assure that authority fi gures will be present at mediation. Although more of an issue with corporate defendants than with personal injury plaintiffs, do not overlook the “favorite aunt” whose arbitrary non-legal advice over the phone, absent her investment and education in the actual give-and-take of

a “live” mediation process, can wreck your chances of a consensus. There admittedly is also the complicated problem of insurance adjusters prohibited from traveling or with “set” authority. Half the battle in a mediation is one of perception—that all parties are on a level playing fi eld, willing to listen, and subject to massaging of their pre-mediation positions. Unless your mediator can at

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April 2015 Around the Bar 15

FORMER SOCIAL SECURITY JUDGE PETER J. LEMOINE

Social Security Disability LawOffi ces in Alexandria, Baton Rouge, Cottonport

Adjunct Professor (1994-1997), Northwestern State University

MEMBER: American Bar Association, Louisiana State Bar Association, Baton Rouge Bar Association,Avoyelles Parish Bar Association, National Organization of Social Security Claimant Representatives,

Legal Services for Purposes of Disability Committee (Louisiana State Bar Association).

PUBLISHED ARTICLES: “The Worn-Out Worker Rule Revisited,” “Signifi cant Work-Related Limitations of Function Under §12.05C,”

“Questionable Retirement and the Small Business Owner,”“Crisis of Confi dence: The Inadequacies of Vocational Evidence Presented at Social Security Disability Hearings.”

225-922-4551

least communicate by phone with “The Wiz” in all caucus rooms, that perception of equality breaks down and dramatically impacts the chance of resolution.

(3) Many able mediators have a fairly hectic professional schedule that may keep them away from their desks for days at a time. If you are submitting something to be reviewed before the mediation, do not assume that your submission sent the day before the mediation will reach him in time to review it. He may be in out-of-town mediations several days running or that day’s mediation may have run late. If your goal is to have him be familiar with your submission, be sure to send it far enough in advance to give him the opportunity to review it. Online submissions help alleviate this problem, but do not assume that bulky online attachments are a substitute to the security blanket of having the actual photographs or medical records available at a moment's notice when needed at the mediation.

(4) Once the mediation is scheduled, it is a very bad idea—no matter how trusting a relationship you might have with opposing counsel—to have unilateral communications with him concerning goals or expectations or authority. This rule carries over into post-mediation discussions

where the mediator is attempting to follow up toward a settlement. Remember that by choosing to mediate, you have delegated to your mediator the task of modifying expectations necessary to settle the case. Your ex parte discussions with your opponent may undermine much of what the mediator may be trying to do within the confi dentiality of a mediation setting. The concept of “reactive devaluation” is real and crucial in this process. No matter how sincerely you share your limitations with your close associate who happens to represent your opposition, that information will be framed by him or his client as data coming from the opposition—and subject to further negotiation.

(5) Meet or confer with your client beforehand and impress upon him both the strengths and the weaknesses of your case. No case is perfect. This fact alone keeps mediators in business. Ask the client to be open-minded. A mediation is not about winning or losing. It is about getting done, not getting it won. On this one day in this dispute, it is not about confrontation. It is about collaboration.

(6) Do not place your mediator in the no-win position of having to negotiate the allocation of his fee at the start of mediation. He has learned through experience that

REPRINTED WITH PERMISSION FROM THE BATON ROUGE BAR ASSOCIATION

April 201516 Around the Bar

this must be agreed upon at the start, so that he is not victimized by representations that the parties will discuss this issue at the conclusion, then have a party accuse the other of bad faith negotiating and refuse to pay a share of the fee. Surely you have “bigger picture” issues to address at your mediation than to get bogged down on who pays what for the process. Try if at all possible to agree before the morning of mediation.

(7) Take a few minutes the day before your mediation to refl ect on what you really want to communicate in the opening joint mediation session. There are countless benefi ts to such a session, and it should almost never be completely waived, although it should be tailored to the specifi cs and needs of each case. Above all, do not undermine your mediator's mission by resorting to “scorched earth” personal attacks that challenge both your credibility and the ability of the mediator to help forge a collaborative atmosphere leading to consensus and closure. The very best opening presentations are those that highlight not only the advocate's preparation, but also a tacit acknowledgement that there may be another side to his client’s story, maintaining a willingness to listen.

(8) Your mediator’s effectiveness is dependent not nearly as much on his ability to digest data as it is on his skill in reacting to the individual dynamics of what is occurring in the various caucus rooms during a mediation. As your “weatherman” in the other rooms, he is attempting to navigate through a myriad of emotional or bureaucratic issues that may not be part of the “offi cial” agenda, but can

make or break productive discussions. Do not hamper his task by insisting on a step-by-step, “cookie-cutter” negotiation process if he has perceived that the dynamics in this particular mediation make that process a recipe for impasse and failure. If you cannot have faith in your mediator to gauge the temperature in the other rooms and guide you through what your best approach might be on this particular

day—then you have chosen the wrong mediator.

(9) Be aware that appearances and perceptions are crucial in a mediation setting. Always be polite and conciliatory, but do not be overly affable with opposing counsel. You would be amazed at how normally objective clients will react emotionally to ostensibly harmless friendly exchanges in the context of a mediation. Also remember that sometimes private caucus rooms are far from soundproof. Your most

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April 2015 Around the Bar 17

sincere presentation of conciliation and contrition in an opening joint session may be sabotaged when an opposing party walks down the hall and hears uproarious laughter (or worse!) behind your closed doors.

(10) All mediators to some degree expect gamesmanship and “puffery” from the parties. It is one thing, however, to play the negotiation game. It is another one entirely to make a confi dential commitment to a mediator and later attempt to renege on it. Such a tactic hurts not only your credibility and professionalism but is devastating to the ability of any mediator to maintain the confi dence of the parties.

(11) Too many parties assume that a case that does not settle on mediation day will just as easily settle with follow-up telephone or email discussions. Especially in multi-party mediations, there is no substitute for face-to-face contact between your mediator and the parties and for securing the benefi t of that day's hard-earned momentum. Additionally, the reality of hectic professional schedules and the inability of a mediator to stop everything else in a telephone-tag exercise make such

an alternative both frustrating and ineffi cient. It is well worth postponing the pre-scheduled fl ight and staying a little longer to “get ’er done.”

(12) If you absolutely have to postpone or cancel a mediation (which sometimes is unavoidable), please

remember that most mediators who mediate as their primary profession have reserved that day for weeks or months for your mediation only. It will be impossible for them to slot in a replacement mediation without at least several weeks’ notice. As a professional courtesy you should diary the fi le weeks beforehand to be sure “all systems are go.” If something needs to be done before you can mediate, at least give your mediator a fi ghting chance to save

his day. If you must cancel on the eve of mediation, do your best to reschedule with the same mediator whom you have just cost a day’s wages.

(13) Lastly and above all else, please be sure to laugh passionately and uncontrollably at all pathetic attempts by your mediator to infuse lame or tacky humor to your mediation. If not, it can cost you dearly!

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I'M A MEDIATOR AND I'M OKAY Several years ago I received a mediation position paper from a grizzled veteran of courtroom wars. It stated, in pertinent part:

"Mrs. Smith has no real loss of wages. She works in an enjoyable job (obviously she is not an attorney--maybe she's a mediator.)"

While I must admit that many facets of my profession are indeed enjoyable, perception in this case is not exactly reality. Mediating cases for a living entails considerably more than just trading numbers, and those of us who make a living at it do not commit highway robbery. And so with due credit to the immortal Joe South, and with a few thousand now behind me, I invite you for just a few minutes to:

Walk a mile in my shoes Walk a mile in my shoes Before you abuse, criticize and abuse, Walk a mile in my shoes.

Occasionally I am invited to speak in law school settings about the art of mediating. Almost inevitably, someone will come up to me afterward and ask what sort of training he should obtain to commence a mediation practice. My answer is tantamount to the proverbial "How do you get to Carnegie Hall" inquiry--"Practice, practice, and practice some more." You may be the most intelligent, insightful, and persuasive human being ever to walk this earth. You may have attended every ADR course ever offered from Harvard to Pepperdine to everything in between. But unless you have the essential credibility born of shattered hopes and battle scars in the trenches of the litigation world, you will be up against it in hanging out an ADR shingle. Do not misunderstand this statement. Battle scars alone do not a successful mediator make. There is truly a method to the madness of mediating, and practical academic training is indeed crucial in helping forge a roadmap to consensus. But without the been-there-done-that-got- that- holey- t-shirt foundation, you will be struggling to persuade your parties of the uncertainties of their cause. So what do successful mediators carry in their ADR "toolbox"? Although there obviously is no black and white answer, it is safe to say that the following traits are shared, to some degree, by most:

(1) The right-brained ability not only to listen to and digest what is being said, but more importantly, to read between the lines. One wise author described it as "listening with three ears"--to what is said, to what is not said, and to what is under the surface in hidden agendas. A college study found after much experimentation that real oral communication is 55% body language, 38% word intonation, and a mere 7% the words actually spoken. I find the latter, if anything, on the high side.

(2) The ability to recognize and then navigate through almost countless "forks in the road" in any given negotiation. As a mediator, you are the symphony conductor. Timing and direction are essential to a good performance. In any one mediation, depending on the emotional circumstances, you may be required to play various and sundry roles at any given time. You may need to be Saturday Night's Stuart Smalley character, feeling someone's pain. Later you may need to be a rodeo clown, jumping into the barrel and taking the bull's best shot to protect the process. Later still you may need to be Darth Vader, doling out merciless reality checks. Still later you may need to transform into an air traffic controller, influencing the final sequence of arguments and offers that are made. But always--always--you are called to be Yogi Berra, with his wise message that if you come to a fork in the road--you take it. (3) Humor and optimism cannot be overstated. And again, timing, as with the eternal plight of the stand-up comedian, is everything. This can range from gallows humor ("We're all in this lifeboat and we all need to bail"), to self-effacement ("I'm playing the idiot in the other room, which comes quite naturally to me"), to Don Rickles-worthy cuts that hit home at an unrealistic position ("The clueless store called. They're outta you."). But all of this is framed in the unshakeable optimism that we can get through this, that the process is steadily working. Again, in Yogiesque language, "we may be lost, but we're making good time." (4) Perhaps the most important trait of all is the ability to manage perceptions in a manner most conducive to reaching a consensus. Think of the devoted and protective father in the concentration camp in the Oscar-winning film "A Beautiful Life". Think of the heroically creative ways he used with his son to describe and make sense of their unspeakable environment. As a mediator, you must foster the notion that every party is doing at least as well as his opponent. You will need to instill a confidence that there is a premium to continuing negotiations through to a settlement. You will have to navigate through the egos of lawyers (imagine that!) , the fears and anger of injured victims, and the cynicism and insecurities of corporate America. You will encounter both venting and vindictiveness and will need to tactfully translate that to "the other rooms". Expect frequently to feel like a red-sashed runner in the streets of Pamplona. But it is an essential part of your job.

So after reading these words born of trial-and-error, assuming you are still up to the challenge, what are the chances of your doing this for a good living? Alas, not great. One recent law review article analyzed the ADR profession and produced some fairly sobering statistics. Consider an American legal world with over 17,000 registered members of the American Bar Association's section on Alternative Dispute Resolution. Consider surveys that of these, about 5000 to 7000 call themselves "full-time" mediators. Of these, less than 1000 earn more than $200,000 annually. And the million-dollar club? That is the smallest fraternity of all--fewer than 25 in the entire nation. You can always hope Mark Twain was right when he pronounced that "there are lies, there are damned lies--and then there are statistics." Still interested? With all humility, I leave you then with Godspeed and with the sage words of two great figures of history--William Shakespeare (of Stratford-on Avon) and Jim "Catfish " Hunter (of the Oakland A's and New York Yankees). The former declared:

This above all--To thine own self be true, And it must follow, as the night the day, Thou cans't not then be false to any man.

It means, in a mediation setting, that to succeed, you cannot be anyone but yourself (as seedy and detestable as this may be!). To do otherwise is to invite the disaster of losing your credibility, and therefore your audience. In golf or baseball terms, you must be true to your very own swing arc. And speaking of baseball, this leads us to the inimitable "Catfish" Hunter, the mustachioed North Carolina farm boy who achieved baseball immortality, who mused:

"The sun don't shine on the same dog's ass all the time." If you do get to do this on a regular basis, don't ever delude yourself into thinking that you are the perfect mediator for all clients in all cases. No such animal exists. Do what you can when you can--the rest is out of your hands. Vincent P. Fornias

MEMO CHRISTOVICH & KEARNEY, LLP

ATTORNEYS AT LAW 601 POYDRAS STREET, SUITE 2300

NEW ORLEANS, LOUISIANA 70130-6078 504-561-5700

FROM Phelps Gay

SUBJECT: LADC – CLE Moderating – 12/9/16

DATE: November, 2016

The Louisiana statue on Special Masters is La. Rev. Stat. 13:4165. Pursuant to the inherent judicial power of the court, and on its own motion and with the consent of all parties, the court may enter an Order appointing a special master in any civil action wherein “complicated legal or factual issues” are presented or “exceptional circumstances of the case” warrant such appointment.

The consent of all parties may be contingent upon (2) an estimate of the amount of the compensation of the special master; (2) the identity of the special master; and (3) the court’s anticipated specification of the powers of the special master, as defined in Sub-section B.

Subsection B says the Order appointing a special master may specify or limit the master’s powers. Subject to such specifications, the “master shall exercise the power to regulate all proceedings before him and to do all acts and take all measures necessary are proper for the efficient performance of his duties.”

Query whether, in effect, the special master becomes something of an unelected Judge.

Subsection C says the court may order the special master to prepare a report upon the matters submitted to him; and, if the special master is required to make findings of facts or conclusions of law, the court Order may require the special master to include these in his report. The special master’s report shall be filed with the clerk of court, with notice served upon the parties. Within ten days of service of the notice of filing of the special master’s report, any party may file a written

October 10, 2016 Page 2 objection thereto. After a contradictory hearing, the court may adopt the special master’s report, modify it, reject it in whole or part, receive further evidence, or “recommit it” with instructions. If no timely objection is filed, the court shall adopt the report as submitted, unless it is clearly erroneous. Sub-section D says the special master’s compensation shall be reasonable and fixed by the court; and it shall be taxed as court costs. Sub-section E says notwithstanding any other provision of the law (including Article 706 of the Louisiana Code of Evidence) the provisions of this statute shall be the sole authority and procedure for the appointment, duties, powers, and compensation of a special master. This law was passed in 1997. It was amended in 2014. There is an article published in the October/November 2015 issue of the Louisiana Bar Journal called: “Overview of Special Master Appointments in Louisiana State and Federal Court.”

*************************************************************** As for mediation, the Louisiana Mediation Act is found at La. Rev. Stat. 9:4101, et seq. Its purpose is to “provide encouragement and support for the use of mediation to promote settlement of legal disputes.” It defines mediation as “a procedure in which a mediator facilitates communication between the parties concerning the matters in dispute and explores possible solutions to promote reconciliation, understanding, and settlement. La. Rev. Stat. 9:4106 addresses the qualifications of mediators. In order to qualify as a mediator, a person must have completed a minimum of 40 classroom hours of training in mediation and a course conducted by an individual or organization approved by the MCLE Committee or the LSBA ADR section; and that person must be licensed to practice law in any state for not less than five years. Or: A person, whether or not licensed to practice law, must also have completed a minimum of 40 classroom hours of training; and must have mediated more than 25 disputes or must have engaged in more than 500 hours of dispute resolutions.

October 10, 2016 Page 3 Under Section (A)(2), a person may qualify as a mediator by having served as a Louisiana District, Appellate, or Supreme Court Judge for at least ten years and is no longer serving as a Judge. To maintain a listing in the approved register of qualified mediators, a mediator must be willing to accept two annual pro bono appointments and participate in ten hours of training in alternative dispute resolutions in a CLE course approved by the MCLE Committee or the ADR Section every two years. There is a special statute relating to child custody and visitation mediators. This is La. Rev. Stat. 9:334. Article 439 of the La. Children’s Code deals with juvenile mediators – persons qualified to serve as mediators in any juvenile court dispute. Overall, because Louisiana (unlike many other states) does not require parties to mediate, most mediations are conducted by private mediators, not appointed by the court and not subject to the statutory qualifications. The extent to which Louisiana courts should or should not get involved in (or even be aware of) mediation by the parties is a subject for debate.

Judge Carolyn W. Gill-Jefferson, Retired is a former member of the Civil

District Court for the Parish of Orleans. She held that position for more than twelve

years, when she retired September 1, 2006 to return to her native Mississippi to

continue raising her two younger children after Hurricane Katrina.

Prior to her election to the bench she practiced aw privately, served as an

Assistant Attorney General for the State of Louisiana, and a Managing Attorney with

the New Orleans Legal Assistance Corporation,

Judge Gill-Jefferson is a Magna Cum Laude graduate of Tougaloo College

having earned a Bachelor’s degree in Political Science. She earned her Juris Doctor

degree from Loyola University School of Law in New Orleans. She is licensed to

practice law in Louisiana and Mississippi and is a member of the Louisiana State Bar

Association and the Mississippi Bar Association.

She has served the New Orleans community in various capacities including a

board member of the National council of Negro Women of Greater New Orleans,

Grace House of Louisiana, Raintree Children and Family Services and the New

Orleans Children’s Chorus. She was also a member of the Loyola University School

of Law Visiting Committee. While living in Mississippi she worked in the Greater

Jackson community with the St. Andrew’s Episcopal School Parent Association, the

Jackson Symphony Guild, the Mississippi Girlchoir and the LeFleur’s Bluff Chapter of

The Links Incorporated. She formerly served as a member of the board of directors

of the Women’s Fund and Mission Mississippi.

For two years Judge Gill-Jefferson served as a Visiting Professor of Civil Law

at the Mississippi College School of Law. She continues to serve as an Adjunct

Professor of Civil Law.

In 2012 Judge Gill-Jefferson returned to New Orleans. She is currently

working as a Professional Mediator, Special Master, practicing attorney, adjunct

professor of Trial Advocacy at Tulane University School of Law and judge pro

tempore. She is a member of the Crescent City Chapter of The Links, Incorporated

and the Fellowship Missionary Baptist Church.

Judge Gill-Jefferson has received numerous awards and commendations. She

has been recognized as a YWCA Role Model, received the Michalle Wynn

Professionalism Award from the New Orleans Association of Women Attorneys and

has been inducted into the Tougaloo College Hall of Fame.

PD.20499757.1

Hon. Freddie Pitcher, Jr.

is a senior partner in the Baton Rouge office of Phelps Dunbar, LLP. He is a former trial and appellate court judge with approximately 15 years of judicial service. His practices areas includes: commercial, appellate and toxic tort litigation, insurance coverage and alternative dispute resolution. He received his mediation certification through Mediation Arbitration Professional Systems, Inc. (MAPS®), and has received advanced mediation training through the Pepperdine University Straus Institute of Disputed Resolution. He has successfully mediated several hundred cases and conflicts using dispute resolution techniques. In addition to his time spent on the Baton Rouge City Court, the 19th Judicial District Court, and the Louisiana First Circuit, he also served on the Louisiana Supreme Court as an associate justice ad hoc by appointment of the Supreme Court. He most recently served as chancellor and professor of law of Southern University Law Center, where he taught alternative dispute resolution, civil procedure, and trial practice.

Mr. Fornias

is a bilingual Cuban-American, and has participated in over 3000 mediations and scores of arbitrations and insurance

umpire proceedings spanning six states. For almost 30 years, he was engaged in an active litigation practice (over 100

trials) as a partner of Kantrow, Spaht, Weaver & Blitzer of Baton Rouge where he specialized in the areas of casualty,

products liability, governmental liability, and insurance law. Mr. Fornias has written in numerous legal publications,

including authoring of a chapter in “Louisiana Civil Trial Procedure.” He has also lectured extensively in the fields of

litigation, mediation, negotiation, ethics and professionalism in numerous Continuing Legal Education programs and law

school settings, including the LSBA, LSU Law Center, Tulane University Law Center, Southern University Law Center,

Louisiana Association of Defense Counsel, Baton Rouge Bar Association, and National Business Institute, Inc. He is

also an award-winning humor writer in both the Baton Rouge Bar Journal and the Louisiana Bar Journal.

Education Jesuit (New Orleans) High School (Valedictorian), 1971

Louisiana State University, B.A., (Metro New Orleans Valedictorian), 1974

J.D., Louisiana State University Law Center, (Order of the Coif), 1977

Memberships/Affiliations Charter member: LSU Law Center Alumni Board of Directors; Elected member: Louisiana State Bar Association House

of Delegates, 19th Judicial District (1992-2007); Member: LSBA Lawyer Dispute Resolution Program (1999-2007);

Member and chair of hearing committee, Louisiana Attorney Disciplinary Board (2000-2005).

Awards Selected to both Super Lawyers ® and The Best Lawyers in America ®,

as chosen by his peers, in the field of Alternative Dispute Resolution;

Achieved the highest rating (“AV”) by Martindale-Hubbell legal directory,

as evaluated by his peers; LSBA’s Stephen T. Victory Award, 1996;

Baton Rouge Bar Association President’s Award, 1998 and 2006;

LSU Law Center Hall of Fame; One of six (6) Louisiana lawyers appointed on a

bipartisan basis to serve on the appeals panel of Deepwater Horizon Economic

and Property Damage Settlement Program, the largest environmental settlement in U.S. history.

Two United Plaza

Suite 904

8550 United Plaza Blvd.

Baton Rouge, LA 70809

resolutions@maps-adr.com

Vincent P. Fornias Mediator, Arbitrator, Umpire

South Louisiana

E. PHELPS GAY Partner, Christovich & Kearney, LLP Phelps Gay is a former managing partner of Christovich & Kearney, LLP. A graduate of Princeton University and Tulane University School of Law, Phelps joined the firm in 1979, and became a partner in 1985. His practice areas include professional liability (defense of legal malpractice claims and disciplinary complaints), energy and maritime law, products liability, and general casualty. In addition, Phelps is a Certified Neutral with the American Arbitration Association and a Member of the Patterson Resolution Group offering both arbitration and mediation services. Active in professional organizations, Phelps served as president of the Louisiana State Bar Association in 2000-2001, focusing on reform of ethical rules and increasing lawyer professionalism. Currently, he serves as president of the Louisiana Association of Defense Counsel, and he is a member of the Executive Committee of the A.P. Tureaud Inn of Court. Phelps previously served on the Board of Directors of the New Orleans Bar Association, the Louisiana Bar Foundation, the Louisiana Judicial College, and the Pro Bono Project. A long-time member of the Federation of Defense and Corporate Counsel, Phelps received that organization’s Hecker Award in 2004, for his article, "Professionalism in Depositions: The Sound of Silence." Bar Admission: Louisiana, 1979 Texas, 1993 Education: Princeton University (A.B., cum laude, 1975) Tulane University (J.D., 1979) Member, Board of Editors, The Tulane Maritime Law Journal, 1977-1979 Memberships: Louisiana Association of Defense Counsel (President, 2016-2017) Louisiana State Bar Association (President, 2000-2001; Board of Governors, 1994- 1995; 1999-2000; House of Delegates, 1987-1998) Louisiana Bar Foundation (Board of Directors, 1999-2002) New Orleans Bar Association (Board of Directors, 1997-1998; Secretary, 1998-1999) American Bar Association (House of Delegates, 1999-2001; 2004-2006) State Bar of Texas The Defense Research Institute Federation of Defense and Corporate Counsel (Chairman, Maritime Law Section, 1992-1994; Vice Chair, FDCC Quarterly, 1997-1999)