PREPARING FOR AN EFFECTIVE MEDIATION
It takes considerable effort and preparation to make the mediation process work. One complaint I hear over and over is that some lawyers — and perhaps clients — just don’t get it. Based on my experience, some of what it takes to prepare for an effective mediation:
- A common and good faith interest in mediation
- An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date
- The presence of those with real authority to settle
- A level of candor and disclosure that allows the parties to realistically assess the other side’s position
STATING THE OBVIOUS
Perhaps the most important trait of a good advocate who also serves as a mediator is listening to what the other side has to say, along with carefully assessing the position counter to the clients. If this is done — and it should be if counsel’s representation in mediation is to meet professional standards — it allows for a full discussion and exchange of information before and during the mediation. The chances of reaching a settlement increase dramatically. I am not alone. In an article by the Honorable James L. Cott, a Magistrate Judge in the USDC, Southern District of New York, “The Dos and Don’ts of Settlement Conferences,” in the Winter 2016 issue of Litigation, the Journal of the Section of Litigation of the ABA (Vol. 42, No. 2), the author provides a list describing what is required to be ready and effective at mediating:
- Think about the case from the other side’s perspective
- Don’t wing it
- Bring documents and key evidence
- Be as candid as possible in any pre-settlement submissions to the court
- Be prepared to make an opening statement
- Make a demand and engage in real negotiations before coming to the courthouse
- Don’t bring someone without ultimate authority to settle
- Don’t’ make the court manage your client’s expectations
- Anticipate all the materials terms of the settlement before the conference
- Don’t just come with a bottom line – be willing to be flexible and creative
Most of these points seem obvious because they are. So why would Judge Cott repeat them? My guess is because in his experience many lawyers representing clients in mediation are not doing their jobs correctly and are taking the mediation process too lightly.
DON’T WASTE TIME
From the plaintiff’s perspective, it is a waste of time and money to participate in mediation if the defense is not prepared. To effectively prepare, the plaintiff — well in advance of the mediation date — lays out the client’s case fully and candidly. Key exhibits and expert reports, not just conclusions and arguments without evidence to support them, included. From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and the appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and obtain those reports. That has to be done well in advance of the mediation date. It is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process.
Indeed, as I sit here today, we just confirmed a mediation to take place in a bit over two months from now. I started the preparation process today by scheduling a meeting with our firm’s associate who will assist me, the client, and another lawyer who is involved. We will outline what needs to be done, confirm our objectives for preparation, and assign our tasks.
ARE THEY SERIOUS?
There is another point to consider: One of the important items on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I might ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.
TWO MORE GOOD ARTICLES ON PREPARING FOR MEDIATION
The first article, “Making Certain the Settlement You Intend is the Settlement You Get,” by Robert Hugh Ellis of Dykema Gossett PLLC in Detroit, stresses thinking through the terms of your settlement and making sure all aspects are clearly covered so the deal you expect is the deal you get. Indeed, a deal may not be a deal. He emphasizes two points:
- Think through the terms of the settlement so that you can be sure that any “term sheet” incorporates the material terms; and
- If the agreement at the mediation is not intended to confirm that a settlement has been reached until a final formal settlement agreement is reached, then say so in the term sheet. In short, make sure you understand what “finality” means.
The second article, “The Seven Deadly Sins of Mediation,” by Joel Levine, an experienced mediator, explains how to avoid self-inflicted wounds in mediations. These include:
- Not Preparing
- Choosing the Wrong Mediator
- Not Preparing the Mediator
- Not Preparing the Client
- Not Asking the Mediator for Help
- Insulting Everyone
- Lack of Clarity
Finally, Judge Cott repeats a quote from Abraham Lincoln, which is one of my favorites and which I have in my book on negotiations (see bio): “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, and expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.” Good meditating. Guy O. Kornblum, The Resolution Advocate