My own experience over the past twenty years is that mediation is being utilized more and more by lawyers. Why? Because over 80% of cases settle during or shortly after mediation. In addition, lawyers have become more comfortable guiding their clients through the process. However, as with all things in the practice, there is always room for improvement, The following suggestions come from personal observation, plus talking to and reading what other mediators have said on the topic.
Ready, Willing and Able to Try the Case
There is no substitute for experience. Some may say that too many cases are settled. The truth is that in most cases, the parties achieve a better result than taking their chances before a judge, jury, or arbitrator. On the other hand, the key to achieving reasonable settlement for your client is to make it clear that you are ready willing and able to try the case. Unfortunately, some lawyers have the reputation that they will always settle in lieu of trial. If your opponent sees you this way, expect to be treated accordingly. I am not suggesting threats to terminate the mediation or confrontational statements. Rather lawyers should be prepared to try a case and develop a credible reputation of doing so when they reasonably conclude that a fair settlement cannot be accomplished. A reputation is developed over a career and this requires consistent diligence and effective preparation of all your cases for trial or in any other venue.
While it is imperative that everyone in mediation commit to meaningful participation in discussing the strengths and weaknesses of a case, there will be occasions when after a full exploration of the case and careful consideration of all settlement options terminated the mediation is appropriate.
Is Everyone at the Table and Do They Have the Authority to Settle?
This raises a number of points to consider. First, since counsel almost always seek a universal settlement of a dispute, one should ask the questions “Who should be invited to the table?” This might include real parties in interest or anyone who might be affected by a settlement. Sometimes, formal joinder is necessary to assure their participation, but often informal contact or invitation will suffice.
There is no one answer to the problem of assuring that someone is present with sufficient authority to settle all issues at the mediation. As a mediator, I can recount the frustration of spending many hours in achieving a settlement in principle, only to learn that the representative has limited authority or the settlement must be approved by someone else or the final decision maker is not available to extend authority to someone at the mediation.
As a mediator, I always want to talk face to face with the decision maker for each party. In the case of large companies or government entities, it is not always possible to have the decision maker present, but opposing counsel should discuss this prior to meeting so as to know the limitations imposed on the process. The fact is that even when the decision maker is present, it is rare for that person to have unlimited authority. This fact does not have to prevent settlement, as experienced mediators will often encourage the representative to seek additional authority, if appropriate and will settle the case.
Lastly, caution should be exercised in demanding that the other side commit to a position as a condition to agreeing to mediate e.g. minimum demand or minimum offer. This approach almost always results in a refusal to mediate.
To Mediate Now or Later, That is the Question
Once again there is no one answer, but there are some good reasons why you choose one or the other. Is there a relationship to be protected? Do the parties have limited resources and a small amount in controversy? On the other hand, some level of preparation, investigation and discovery is often necessary to enable counsel to reach a reasonable evaluation of a client’s position. There are times when mediation close to trial is appropriate, but all too often clients suffer both emotionally and financially from waiting that long. Counsel must balance all these factors, but remember that the client’s interest must be paramount.
My Way or the Highway
Attorneys are quick to say that trials are won or lost in the opening statement. True or not, mediations are not trials and therefore discretion should be exercised in what you say in the opening session. Most mediators conduct an opening session with all participants present. After a brief orientation, counsel and/or parties are invited to make comments. Best thinking here says the least said the better. Never use the moment to make aggressive or inflammatory statements about the case. Reaffirm your client’s position, but emphasize that he or she is there to bargain in good faith. Leave it to the mediator, in private caucus, to discuss problems with the opponent about its case. The message is often more effective and clear when delivered through that means. Be prepared for similar treatment by the mediator during private caucus with one’s own client.
Preparation. Preparation. Preparation. You, Your Case and Your Client
Although I am not suggesting that mediation requires the same amount o preparation as a jury trial, counsel should not minimize the effort it will take to do a competent job. While it might not be necessary to explore every nook and cranny, you should know where they are. Knowledge is power and no one should expect to negotiate effectively in a mediation unless you possess it.
This is important or two reasons. One, it would be foolish not to listen to the mediator when he or she raises potential weaknesses in the case, although counsel should not hesitate to point out when the mediator may be wrong. Two, a key to achieving a good result is helping the mediator in conducting the same process with your opponent. Do not underestimate the importance of presenting to the mediator a view of the acts that can be supported by admissible evidence and a reasonable evaluation of trial outcomes, based on applicable legal authority arising from those facts.
Counsel should also follow the same rules for client preparation. You would not consider taking your client to trial without careful preparation, mediation should be no different. Explain how mediation works, including the rules governing privilege, confidentiality, and that the mediator will ask questions and invite participation. Equally important the client deserves the benefit of counsel’s evaluation of the case, before the mediation, including potential weaknesses and pitfalls. There is then no need for “grand-standing” in front of the client during privet meetings with the mediator. Since there are few cases with a 100% chance of success, one can ignore the impulse to lecture the mediator and your client about that level of confidence.
Consider the damage done to the client’s level of trust of their lawyer if they learn for the first time there is a risk of summary judgment or that fees and costs will be substantial. The mediator will ask about these issues and it is devastating to a client to hear about them for the first time at the mediation. While clients appreciate aggressiveness and diligence on their behalf, they also respect honesty and candor from their lawyers.
“A Couple of Hours Ought to be Enough Time”
Probably not! Mediation is a process and as such parties need time to tell their side and time to consider changing long held opinions and positions. Attorneys often ask me why is takes so long. I remind them that while we lawyers may be capable of seeing the wisdom of reversing field or at least modifying a position, clients may not. It takes time, and patience is indeed a virtue. Many times a mediation, that seems to be going nowhere, results in a settlement when the parties continue to make a good faith effort.
Evidence tells us that a give and take negotiation process with a series of offers and counter offers is more effective that stating an initial position and “sticking to it.” This is not to say that parties should not make large moves (often effective, and sometimes necessary.)
The mediation process, if successful, will be the parties’ “day in court.” Remember to set the stage for them. It will often be difficult and emotional, but rarely matching the costly, draining courtroom experience. First and foremost your client wants a reasonable, prompt resolution of the case rather than winning at all costs. Remember that the mediator is in the best position to assess the possibility of reaching a settlement, e.g., information on a confidential basis from the other side suggesting more flexibility than their stated position, but the mediator is not authorized to communicate.
In short, trust your mediator and the process. It works.
We Agreed to What!
Surprises can be fun, but not after working all day to settle a case. So eliminate the possibilities by clarifying before you leave the mediation. Mediators should ask the parties if they want the terms reduced to writing and if so prepare a list of the key terms for signature. I prefer to also bring the parties together, read the terms and ask the parties and counsel to confirm and/or further clarify. This also allows counsel to agree on who will prepare the formal documents, etc. Subject to local custom or rules, a settlement agreed to at mediation will be enforced by courts.
On those occasions when a global settlement could not be reached on all the issues or with all the parties, consider asking the mediator to serve as a binding arbitrator or schedule a second mediation. Often it is best to give it a few days before you decide. We are past the day when a willingness to mediate or otherwise expedite resolution is considered a sign weakness . . . aren’t we?
I hope this has been helpful. Mediators are always willing to answer questions or assist in bringing people to the table, so if you are thinking about a mediation, don’t hesitate; call the mediator of your choice. Peace.