Who attends the mediation is critical. My own experience bears this out—when the actual decision maker is in the room and actively participating, we have a much better chance of settling. The higher the stakes, the more important it is for the right people to sit around the table.
3M, headquartered in St. Paul MN, is number 116 in Forbes Fortune 500 listing. In 2008, 3M acquired an Indiana company, Aearo Technologies, which sold earplugs to U.S. military. However, in 2015, 3M ceased manufacturing the ear plugs. Complaints from veterans arose about hearing loss and tinnitus. An earlier whistleblower case brought the defective products to the attention of Iraqi and Afghanistan conflict veterans. Currently, there are 250,000 individual lawsuits pending, and the cases have been consolidated into the largest multidistrict litigation (MDL) case in U.S. history.
Additionally, 3M’s sub filed for bankruptcy in Indiana but recently the bankruptcy was dismissed. As this legal conundrum has tangled its way through the courts, the lead plaintiffs’ lawyers engaged in settlement discussions with 3 M’s legal team but to no avail. Upon request by plaintiffs, the MDL court ordered two days of further mediation in May of 2023 and specifically ordered 3M CEO and Chairman of the Board Michael Roman to “personally attend and listen and engage directly with the mediators so that his reports to the Board of Directors are properly informed by first-hand knowledge of the negotiations.”
You gotta love this Judge. She understands what happens in the mediation. Here in St. Louis our local federal courts order almost all civil lawsuits to mediation. They appreciate the value mediators can bring to a dispute. For example, mediators can: suggest the unthinkable; voice optimism; and communicate between lawyers who dislike one another. When a court orders mediation it wants a honest discussion and effort. (My favorite kind of mediation.)
Mr. Roman’s annual salary is a cool $18M so after some quick math it appears that two full days of mediation cost Defendant $144K in terms of his salary. Despite the CEO’s presence, the case did not settle, and the dispute continues on. My optimistic mediator brain responds that they need to keep on trying.