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WHEN CASE EVALUATION JUST GETS IN THE WAY By Joseph C. Basta       Michigan circuit courts have two principal vehicles for alternative dispute resolution - case evaluation and mediation.  The former is evaluative, the latter facilitative.  Case evaluators impose a settlement number on the parties& mediators help the parties select a number of their own.  What process should come first?       Under MCR 2.410(A), all civil cases are "subject" to alternative dispute resolution processes unless otherwise provided by statute or court rule.  At any time, after "consultation" with the parties - whatever form that may take - the court may order a case into an appropriate ADR process.  Case evaluation of tort cases is mandatory.  MCR 2.403(A)(2).  The practical import of these rules seems to mean that virtually all circuit courts submit all civil lawsuits to case evaluation, some circuit courts submit cases to mediation, and a few circuit courts do both.  Unfortunately, neither court nor counsel appear to give enough thought to which ADR device should come first.  Often the result by default is a case evaluation number that fails to quickly resolve the case but that one party becomes wedded to, further complicating settlement down the road.       As a litigant who thinks mediation appropriate for your case, how do you synchronize case evaluation with mediation in those jurisdictions which only use case evaluation or which put case evaluation first?       MCR 2.410(C)(1) requires the court to "consult" with the parties before selecting ADR unless you are litigating a tort case.  Even there, the rule certainly permits the parties to request mediation from the court before case evaluation.  If you have a choice of mediation, case evaluation, or both, ask for a pre-trial conference and choose mediation first.  The court rules permit you to mediate almost any time and give you the chance at resolution early in the litigation process, and certainly before you subject yourself to a quick and dirty case evaluation number.  Case evaluation typically occurs late in the litigation after the expense of full-blown discovery.  Litigators have very little time to explore a case before the panel, and the quality of case evaluators varies widely.  In mediation, you have the luxuries of time and mediator experience, whether you select a mediator of your own or rely on the court to pick a certified mediator from the court's approved mediator roster.  You can tailor discovery and investigation to the nature and scope of your mediation and design the mediation process too.  In case evaluation, "one size fits all" (unless you enlist a privately-selected panel which usually then mediates anyway).  Most importantly, in mediation you control the process and the outcome.  If mediation works as designed, you should avoid the need for case evaluation altogether.       Whether you think a case evaluation number too high or too low, how do you convince opposing councel and client to agree to mediate after case evaluation?  Consider these rationales: Remember that litigation is a dynamic process.  Everything occurs on a continuum.  Yesterday does not necessarily control today.  As the case moves on, parties obtain more investigation and discovery, business needs change, risk assessment evolves, and parties simply wish to get on with their lives.  Unlike vintage wine, most cases do not get better with age.  ADR processes are dynamic too.  Case evaluation reflects settlement value at one time under unique circumstances& mediation reflects case value at another.  If you don't settle now, you will likely settle later, with passage of more time (and money). The unavoidable shortcomings of case evaluation are reasons to put the case evaluation number into a measured, limited context.  Empirical evidence suggests case evaluation is starting to suffer a lack of credibility.  Statewide statistics on case resolution indicate that case evaluation is resolving fewer cases and mediation more.  Your case evaluation number is often little more than a stranger's snapshot of your case.  It is certainly not your best number nor your adversary's. Although your adversary may like the case evaluation number, and may even have accepted it, opposing counsel may share your view of the shortcomings of the case evaluation process.  If her client really wishes to settle, opposing counsel may be open to taking a fresh look at the case via mediation. Trial counsel see wisdom in settlement, but your clients need the reality check that only hands-on mediation affords before they will be ready to resolve the case.  Clients have had no input into case evaluation, and the number comes to them out of the blue.  Only face-time with the opposing party and the mediator will nudge them toward settlement. Sticking with a case evaluation number at all costs does you little good if your adversary thinks the case evaluation panel was brain-dead.  You still face the time, expense and uncertainty of trial, knowing full well that, statistically, you are 98% certain to settle your case short of trial at some number.  Why not take another shot at settling through mediation?  The only downside is some additional expense.  At least you gain better insight into the case and hopefully save the expense of trial.       If you are going to be "subject" to ADR, let it be on your client's terms, not the court's.  And don't let the case evaluation number get in your way.   The opinions expressed by the author of this article are not necessarily the opinions of any of the other Associates of Professional Resolution Experts of Michigan, LLC.   Copyright pending by Professional Resolution Experts of Michigan 2008