Mediation, Arbitration and Special Master Services
Phil Cutler is a nationally recognized professional in the field of alternative dispute resolution. He is a member of the American Arbitration Association’s National Commercial andLCCD(Large Complex Commercial Disputes) Arbitration Panels, the National Association of Securities Dealers Arbitration Panel, the AAA’s Northwest Mediation Panel, and the Western District of Washington’s CR 39.1 Mediation and Arbitration Panels. Here, in his own words, is more information about his mediation, arbitration and special master practice and the basis on which he provides those services.

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Both mediation and arbitration are forms of alternative dispute resolution and use the services of an impartial, neutral third-party to resolve a dispute. The processes, however, are fundamentally different. Mediation is a consensual, non-adjudicative process in which the mediator facilitates the parties’ negotiation of a settlement. Arbitration is an adjudicative process in which the arbitrator decides the dispute and renders an award that may be enforced through the courts. It is vitally important that the neutral involved in any ADR process be truly impartial and neutral and enjoy the confidence of all parties and their counsel. Accordingly, please review (and share with your client) my Profile and provide me (or the ADR organization administering the process) with full information about the parties and the lawyers involved so that I may make any appropriate disclosures.

My current Mediation and Arbitration/Special Master profiles, as well as of all the materials referenced below, are available by clicking on the appropriate icon.

Mediation
The following applies whether your mediation is privately initiated, pursuant to court order (such as under W.D. Wash. Local Rule CR 39.1), or administered by the American Arbitration Association.

You may contact me or my assistant (Amylyn Riedling – or 206-340-4600) to determine my availability for a mediation. If you would prefer that your mediation be administered by the AmericanArbitration Association, simply advise us of that preference when you call; alternatively, you may contact the AAA directly by getting in touch with Hilda Ibarra, Mediation Coordinator, AAA Western Case Management Center, Fresno CA: or 1-877-528-0880. I generally like to know who the parties and lawyers involved in the case are, the court or other forum in which the action is pending, the trial (or arbitration) date, and a brief description of the nature of the controversy and the amount at stake.

I like to receive two memos from the parties in a mediation: the first is a 5-10 page memo describing the parties, summarizing the key facts, and addressing important liability anddamages issues, which is shared with all other parties to the dispute; the second is a shorter, 3-5 pages, confidential memo – for my eyes only – summarizing the history and current status of settlement negotiations and the submitting party’s current settlement position, estimating the legal fees incurred to date and a good faith estimate of the additional expense required to try the case to conclusion, and identifying underlying business or personal interests, concerns or objectives or other considerations relevant to settlement.

The time line for submission of mediation memoranda set forth in my General Mediation Requirements represents my preference; I am always willing to consider another time line if counsel orthe parties feel doing so would be more beneficial. I do like to have the parties’ mediation memoranda sufficiently in advance of the mediation conference to enable me to prepare for the conference. I generally visit with counsel by phone after I’ve read the mediation memoranda to get counsel’s view on the most appropriate format for the mediation and the issues driving both counsel’s client and the other party.

Although I try to tailor my mediation style to the needs of the parties and counsel, I normally stay in a facilitative mode as long as that seems productive, moving to a more evaluative style with appropriate reality checks when progress begins to falter. This is one of the subjects I generally discuss with counsel in my pre-mediation telephone conference.

My fee for serving as mediator is currently $295/hr for both mediation conference time and necessary preparation, although a higher hourly rate may apply for multi-party or extraordinarilycomplex matters. If the parties would prefer a per diem or fixed fee, please let us know and we’ll respond. I waive routine costs (copying, long distance telephone, fax, etc.) up to $50 in the aggregate. Mediation fees are payable on a proportional basis by each separately represented party, unless the parties otherwise agree. I normally collect an advance deposit from each party based on an estimate of the number of hours required for both the mediation and necessary preparation. As a general rule, most half day mediations require about 6 hours of preparation and conference time (about $1750 total at $295/hr); most full day mediations require about 12 hours of preparation and conference time (about $3500 total at $295/hr). Unused deposits are refunded after the mediation; if deposits are insufficient to cover mediation fees and costs, you will be billed for the difference. As with any 3rd party vendor providing litigation services to the parties or lawyers in a case, you or your law firm will be ultimately responsible for payment of your client’s share of mediation fees and costs.

I ask that the parties sign and return to me a mediation agreement prior to the mediation. At the mediation conference, all participants in the mediation are required to sign an agreement concerning mediation confidentiality and my role as mediator.

I also make available to counsel a memo for their client representatives describing the mediation process, and a set of mediation practice pointers I have developed.

I generally conduct mediations in my office. Where my office facilities are inadequate, I am more than willing to conduct the mediation in the offices of counsel for one of the parties. I have a reduced rate for travel time within Western Washington.

Arbitration
I am a member of the AAA’s National Commercial and LCCD (Large Complex Commercial Disputes) Panels, as well as the NASD’s national arbitration panel and the Western District of Washington’s CR 39.1 panel. Although the great majority of my arbitration assignments come as a result of having been selected by the parties in a AAA- or NASD-administered dispute, I also handle non-administered (i.e., private) arbitrations. My current rate for AAA and private arbitrations is $295/hr, including study and preparation time, plus normal expenses. I have a reduced rate for travel time within Western Washington. Fees for NASD arbitrations are determined by NASD rules. There is no party-paid fee for short (1 day or less) King County Superior Court Mandatory Arbitrations. To preserve the integrity of the arbitration process, I ask that you discuss my availability for an arbitration assignment only with my assistant (Amylyn Riedling – or 206-340-4600) or with the ADR organization administering your case.

I’ve found that parties and their lawyers (1) need and want information about how the decision-maker conducts the dispute resolution process, and (2) the decision-maker is best able tocarry out his or her role – and the parties and their counsel are most comfortable with the fundamental fairness and integrity of the process – if the decision-maker manages the process fairly and efficiently. However, information about how individual arbitrators conduct arbitrations is difficult to get. As a consequence, several years ago I prepared a set of General Policies outlining my general philosophy about arbitrations and case management. These policies apply (except to the extent your arbitration agreement provides otherwise) in private arbitrations and AAA cases in which I am sole arbitrator, and also where I am the chair of a 3-arbitrator AAA panel. The AAA Case Administrators with whom I work routinely send these policies out to counsel and the parties when I have been selected as arbitrator.

Special Master
By appointment of Judge Alfred Chiantelli of the San Francisco County Superior Court, I am currently serving as Special Master in the Weyerhaeuser Hardboard Siding Class Action settlement.My role generally involves overseeing the implementation of the settlement over the 9 year term during which class members may submit claims and resolving disputes between Class Counsel (Christopher Brain of Tousley Brain Stephens, Seattle) and Counsel for Weyerhaeuser (Thomas Boeder of Perkins Coie, Seattle) over terms of the Settlement Agreement. Although my role in the Louisiana-Pacific Inner-Seal Siding Class Action settlement was different, I worked closely with the Special Master in that case, former Oregon Supreme Court Justice Richard Unis.

In addition to my role as de facto discovery master in arbitrations where I am either sole arbitrator or the chair of a 3-arbitrator panel, I have served as Special Discovery Master inKingCounty Superior Court litigation. My most recent assignment was pursuant to the order of Judge Suzanne Barnett in Kirlan Venture Capital v. Regis and Tenneson, KCSC # 00-2-14333-8 SEA. In that case, Kirlan was represented by Richard Clinton of Dorsey & Whitney, Regis was represented by Robert Adolph of Adolph & Gamache, and Tenneson was represented by Ralph Palumbo of Summit Law Group, all of Seattle.

The fee basis on which I undertake Special Master assignments generally parallels the fee structure for arbitration assignments.

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Please let us know if we can provide any additional information or answer any questions.