This coming Tuesday, January 19, I will be a faculty member at a WSBA New Lawyer seminar on Mediation Basics. In March, I will be a speaker at two sessions of the annual Northwest Dispute Resolution Conference. And I was recently invited to be a returning faculty member at an insurance industry “Mediation Claims College” in Baltimore in September. As such, I have been spending a lot of time thinking about what information will be useful to my audience, and how to convey that information in my presentation materials.
The following article expands on the newsletter, to provide additional background and some of the rationale behind the checklist.
1. Be deliberate about the timing of your mediation
Do not schedule a mediation simply because it is required by the case schedule.
Consider the impact of pending dispositive motions, depositions, medical examinations and other discovery activities. Where a summary judgment motion or medical examination is pending, both sides are likely to be aware of their risks, thereby creating opportunities for settlement. However, once a summary judgment motion has been decided or the results of a medical examination are known, those risks are diminished.
Assess whether the case requires a full-day, half-day or shorter mediation. Many mediators will require full-day commitments, while others will offer flexible scheduling options. If the case can be resolved in a couple of hours, your client will not appreciate being forced to pay for more time. However, be realistic about the time required; if the case is complex, involves more than two parties, will impact ongoing relationships between the parties, or involves a plaintiff who has an emotional story to tell, consider scheduling the mediation for a full day. The vast majority of cases are resolved at mediation; however, the reason that many of the remainder fail is because there was insufficient time to allow the process to work.
In rare cases, one or more counsel will assert that there is no possibility of settlement, and that they are simply “checking the box” to satisfy a case scheduling requirement. If this is the case, consider requesting a waiver of the ADR requirement, or locate a mediator who will conduct hourly mediations.
Examples of such situations may include:
- Your client is focused on the principle of the matter, and is not interested in compromise.
- The other side has made a “bottom line” demand or offer that is unacceptable to your client and you believe that the other side is being truthful.
However, be prepared to answer some tough questions from the mediator about the reasons why a settlement is not possible. From a mediator’s perspective, there are always opportunities for negotiations.
2. Be realistic in your evaluation of the case
Most litigated cases will involve an exchange of some amount of money. As such, it is important to arrive at an estimated monetary value of the case. However, in order to arrive at a realistic settlement amount, you will also have to determine the cost of proceeding to trial, which will include both “hard” costs (such as attorney fees and expert witness fees), “soft” costs (such as the time it will take to get to trial, the emotional impact of litigation on your client, etc.), and the estimated value of any non-monetary needs and interests. Finally, factor in the risk at trial, or the percentage chance of obtaining the desired result.
Be careful not to overestimate your chances of success or underestimate your costs and risks. It becomes far more difficult to resolve a case if you have to justify a negotiation strategy to your client at mediation that differs from your initial evaluation.
3. Define your goals
Define your mediation goals early, as they will influence timing of mediation, choice of mediator, and negotiation strategy.
The goal of a mediation is typically resolution of the entire case. However, there may be other goals that can be achieved in mediation. For example, it may be possible to narrow the case, resolving high risk issues and clarifying the remaining issues for trial. Unnecessary parties may be dismissed by stipulation, thereby distilling the case to its most critical issues.
Setting procedural goals can narrow issues for trial, expose the strengths and weaknesses of each case, identify drivers and impediments to resolution, and clarify what targeted discovery is necessary to the development of the case for trial, as opposed to simply propounded as a matter of course.
A mediation can also help you lay a foundation for how the parties will move forward – you can discuss such items as timelines, the potential for follow-up mediation sessions once certain discovery goals have been achieved, etc. In essence, you may be able to use a mediator as a discovery master, without the cost of protracted discovery motions.
While financial objectives are the most common, there may also be relational goals that should not be ignored, and that may in fact cause a mediation to fail if they are not addressed. Reputation may be the primary the driver in a case of malpractice, defamation, intellectual property infringement, etc. Parties may have an ongoing business relationship, but may be involved in a single issue contract dispute that is negatively impacting the business. Neighbors may see each other regularly and have common acquaintances, but be involved in contentious litigation.
Employment cases, family disputes and TEDRA matters, in particular, tend to include critical relational components.
4. Develop a negotiation strategy
Once you have evaluated the case and assessed your goals, you will be in a position to develop a negotiation strategy that will allow you to achieve those goals.
- Would a joint opening session or other joint session work be useful or productive, or is the case better suited to shuttle-style negotiation? Can your mediator accommodate either or both?
- Are there specific issues on which you need the mediator’s assistance? (E.g., managing an unrealistic client, conveying information to the other side without looking weak, etc.)
- Are you more comfortable using a “competitive” (positional) approach or an “integrative” (interest-based) one, given the specific issues presented by your case? The former assumes that each party will compete for the most he or she can get of a limited resource. The latter assumes that if both parties work together, they can maximize available resources so that each gets more of what they want.
- Assess the potential for non-monetary offers or concessions, such as apologies, letters of recommendation, etc. Think outside the box, especially if you are engaging in early mediation and/or there are relational issues at stake!
- Map out your negotiation moves. These can consist of monetary offers or demands, as well as non-monetary ones.
- What are your alternatives to a negotiated settlement? What is your worst alternative (WATNA), your best alternative (BATNA) and your most likely alternative?
5. Be deliberate in your choice of mediator
There are many different types of mediators, from evaluative to facilitative and even transformative on one axis, and from narrow to broad on the other. Some use a combination of models, while others are most comfortable with one.
A mediator using primarily evaluative strategies will be more likely to provide his or her assessment on the issues, while a mediator using facilitative techniques will encourage the parties to make their own assessments, regardless of whether the mediator agrees with them or not. Similarly, on the narrow versus broad axis, the term “narrow” at its extreme refers to purely positional and distributive (“fixed pie”) negotiations, while “broad” means that the mediator is likely to help the parties assess non-legal arguments in order to achieve a long-term resolution.
Most mediators will tend towards one of these styles, but should be able to tailor their (procedural and substantive) approach to the needs of the specific case.
Where there are ongoing relationships between the parties, facilitative techniques may be better suited to a long-term resolution than an evaluative approach that does not emphasize underlying interests; however, if the case is primarily focused on monetary damages, an evaluative style will allow the parties to weigh the risks and benefits and decide whether to settle or take the case to trial.
If your case involves a highly specialized subject matter, consider a mediator who has a background in that subject matter or is known for handling similar cases.
Schedule a pre-mediation telephone call with your mediator. Some mediators will schedule a conference with each party prior to the mediation in order to gain a deeper understanding the case. This allows you to build a relationship with your mediator, discuss issues that may not be addressed in your mediation brief, and will allow your mediator to build a strategy to help you resolve the case. Use this time to ask any questions you may have about the mediator’s style, experience and mediation model. Get to know your mediator and allow your mediator to get to know you.
If your mediator does not generally conduct pre-mediation conferences, request such a conference – it is time well spent.
6. Fully prepare yourself and your client for the mediation
Determine who the appropriate stakeholders are and who should attend the mediation (either in person or by telephone). Keep in mind that some courts require decision-makers to be present in person absent exceptional circumstances.
Make a strategic decision about the roles of the attorney, the client and anyone else attending the mediation. Are you comfortable allowing your client to speak to the mediator directly? Either way, make sure to have a conversation with your client about the division of responsibility in the mediation room.
Consider mapping out your negotiation moves, so that you are not taken by surprise. You can always alter your strategy to fit the actual negotiations, but knowing how you want to arrive at your goal, as well as what your goal is, can alleviate much of the anxiety that comes with having to make decisions “on the fly”.
7. Submit an effective mediation brief
Submit your brief in a timely manner. Too often, mediation briefs are submitted the day or even the night before a mediation. The earlier you submit your materials, the more likely it is that your mediator will have had time to read them, to think about them, to do any necessary research, and to make sure that his or her techniques are tailored to your specific case.
Submit a brief that is specific to the mediation. Do not submit your summary judgment motion (which was written for a different audience) or re-purpose a status report (which may focus on aspects of the case that are irrelevant to mediation). The goal is both to educate the mediator and to allow the mediator to gain an understanding of the case that will allow him or her to convey your perspective of the case to the other side. You do not need to convince your mediator - you need to give the mediator the tools and information necessary to help you convince the other side.
Submit only those documents that are relevant to the mediation. While most mediators will try to read everything that is sent to them, cluttering your submission with irrelevant material makes it much more difficult for the mediator to identify the issues that are truly pertinent to resolution. In addition, while mediators generally include “reasonable” review time in their fee, most mediators will add a surcharge for extra time to review voluminous materials.
Here are some examples of documents that you may want to consider eliminating from your mediation submission:
- Medical records that have no relevance to the case.
- Medical bills – they add little to no value for a mediator. (If you are in arbitration, you may need to establish the cost of medical treatment, in which case an arbitrator will thank you if you also submit a concise summary of expenses.)
- Accident reports by the investigating officer. Such reports are hearsay evidence and have no probative value with respect to either fault or damages. (If the report provides information about road conditions, weather, etc., by all means submit it and highlight the pertinent information.)
Consider sharing your mediation brief with the other side. Many attorneys do not send their mediation briefs to opposing counsel, which means that the mediator has to spend valuable time educating the parties about contested facts and legal arguments. There are usually few, if any, facts or arguments that a party wants to keep confidential throughout the mediation.
If there truly are items that you do not want the other side to know prior to the mediation, share your primary brief and submit a separate confidential document to the mediator.
8. Make sure that someone with full authority will be present at the mediation
Schedule the mediation at a time that takes into account the time constraints of clients and other stakeholders that will have to travel. If your adjuster is on the East Coast and the mediation begins in the afternoon, you are not likely to be able to resolve the case until the adjuster returns to their office in the morning. Similarly, if your client is traveling into town for the mediation, make sure their travel is booked well after the anticipated end of the mediation.
Alert everyone who may need to be consulted regarding a settlement (such as lienholders, Medicare, spouses, etc.) of the mediation, and ensure that they are available for the duration of the mediation
9. Be prepared to engage in substantive negotiations
Have a candid discussion with your client prior to the mediation. This will allow you to prepare your client for what is likely to happen at mediation, as well as giving you a more accurate assessment of his or her needs and interests, some of which may be non-monetary. Make sure your client is prepared to listen with an open mind and to consider all aspects of their case.
Objectively evaluate the strengths and weaknesses of your case. This will allow you to prepare for facts and arguments that are likely to be raised by the other side and counter them if necessary. A good mediator will ask tough questions and work with you to craft a settlement, but this is possible only if you have prepared both yourself and your client to deal with any weaknesses in your case and to be correspondingly flexible.
Have a meaningful discussion with opposing counsel before the mediation. When attorneys arrive at a mediation having never spoken to each other about settlement, a significant amount of time may be spent laying the groundwork for substantive settlement negotiations. You can eliminate much of your and your client’s frustration at any perceived lack of progress in mediation if you have had conversations with opposing counsel prior to the mediation.
10. Do not make unreasonable demands and/or offers
The perceived unreasonableness of a demand or offer often causes the other party to respond in kind. Unreasonable positions are often rooted in a fear that a reasonable position will compromise a party’s bargaining position. But if the first few hours of a mediation are spent with the mediator shuttling unreasonable numbers back and forth, this only leads to frustration and a digging in of heels.
You are almost always better off starting closer to an acceptable outcome and making smaller moves than starting too high or too low and being forced to make larger concessions. Mediators often hear the argument from one side that they have made large concessions while the other side has made only small ones. Most often, this is because the side making large concessions started so high or low that they cannot reach a reasonable middle ground otherwise.
Do not ask your mediator to convey a “bottom line” or “final” demand or offer, unless it really is your best offer. First, you run the risk of ending the mediation if the other party deems your offer or demand to be unacceptable. Second, and perhaps more importantly, if you continue to negotiate after taking a “bottom line” position, you may lose credibility with both the mediator and opposing counsel – not just for this case, but on future cases as well.