A Top Ten List of Keys to Success in Court-Ordered Mediation

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This article appeared in the Detroit Legal News on January 30, 2015 and is being reprinted with permission by the publisher.

Given that virtually all state court civil cases end up in mediation, and less than 2% of all filed federal and state cases ever reach trial, mediation advocacy is gradually replacing trial advocacy as the key skill in the litigator’s tool box. Consequently, in descending order is a Top Ten List of practice tips for advocates in court-annexed mediations, although most will have broader application to all mediations.

10. Civility and Respect

Since the court-annexed mediation progression commences once litigation is filed, begin building momentum toward mediation success by showing respect for the other side and cooperating in scheduling and reasonable extensions of discovery dates, because this positive attitude and working relationship likely will carry over into the eventual mediation.

9. Preparation for Court Scheduling Conferences

Be prepared at court scheduling conferences to discuss the suitability and timing of all appropriate ADR methods, including mediation. Also, consider in more protracted or complex cases whether to suggest expanding the traditional role of the mediator to include additional duties such as discovery and case management.

8. Mediator Selection

Do everything possible to reach agreement with all counsel in selecting a mutually acceptable mediator who is well-known, reputable, and has a proven track record. Otherwise, in the absence of the parties’ agreement, courts generally will appoint a mediator (by random rotation in state courts) from a list of court-approved mediators, without an opportunity to consider the particular needs and personalities of the parties and the individual circumstances of the case. Proficient advocacy requires litigators to be proactive in mediator selection and not resort to a default court selection unless they truly are unable to agree on a suitable mediator.

7. Scheduling Considerations

Work closely with the mediator to schedule mediation at the most opportune time, not only within the deadlines set (often automatically) by the court but also with reference to other litigation milestones:

• After allowing sufficient time within which to obtain the essential facts/information/discovery required for productive negotiations and informed decision making (if necessary, ask the court to compel any discovery needed for mediation)
• Before incurring the significant transactional expense of experts, discovery completion, and extensive motion practice indispensible for trial preparation but not for negotiation; if the case is unusually complex or technical such as some business claims, medical malpractice, product liability, intellectual property or antitrust, extensive formal discovery and expert evidence may be unavoidable
• Before court-ordered case evaluation that usually will set a ceiling, floor, or other limits on future negotiations
• Before significant evidentiary or dispositive motions are decided by the court because doubt, risk and uncertainty usually motivate parties to negotiate, unless settlement prospects are dependent on prior resolution of controlling legal issues even though negotiation leverage will be lost
• Before ongoing business or personal relationships are irreparably damaged by the adversarial, costly, time consuming, and disruptive nature of litigation

6. Compliance with Rules, Orders, and Written Agreements

Pay close attention to, and fully comply with, all provisions of judges’ mediation/facilitation orders as well as all applicable federal, state, and local court rules. This would include terms regarding confidentiality, inadmissibility, good faith, and especially the presence at mediation of complete decision making settlement authority that in my experience is the rule most commonly violated. Moreover, most active mediators utilize written mediation agreements containing the above terms and others that may go beyond applicable court rules and case law.

5. Necessary Participants

It is essential, in order to maximize the effectiveness of the mediation process, to identify and involve client representatives with binding decision making settlement authority, obtain their commitment to attend in person and participate, and accommodate their availability when scheduling. Also, consider availability by phone of any consultants or experts whom you might need to answer questions arising during the mediation. Other unnamed but critical interested parties, whom I refer to as “significant others”, are those persons who could affect or be affected by the outcome of a mediation, such as the clients’ spouses, family, trusted advisors, or corporate department heads. Ideally they should be present in person at the mediation and included in scheduling unless their influence is expected to be more disruptive and negative than beneficial and positive.

4. Pre-Mediation Summaries

It is standard practice (and usually required in court-annexed mediations) to submit written pre-mediation summaries unless the dispute is simple or preparation cost is a factor. The summaries should set a nonadversarial, collaborative tone conducive to joint problem solving. While it is appropriate to zealously yet honestly advocate your client’s best interests, avoid crossing the line into argumentative or confrontational territory. Since your target reading audience is primarily the clients on both sides and secondarily the mediator and opposing counsel, your summary should be written in plain language easily understood by non-lawyers. Focus on the key disputed issues impeding a resolution. And, keep it as simple and brief as possible, no more than 10 pages except in unusual or complicated situations.

3. Client Preparation

Since mediation is about the clients not the attorneys or the mediator, client preparation is paramount. Meet with your clients before the day of mediation to discuss the important issues in the case from the perspective of all parties, including without limitation the following:

• Overall negotiation strategy and tactics
• Strengths and weaknesses
• Further information needed in order to negotiate
• Information to disclose or withhold
• The difference between legal positions and underlying interests, needs, and concerns, especially those shared in common
• Objective and independent standards of evaluation
• Client negotiation priorities
• First priority, essential for clients (non-negotiable)
• Second priority, important for clients (negotiable but preferred)
• Third priority, desirable for clients (adds value)
• Various options that might settle the case, including creative non-monetary solutions
• Principled opening offers that encourage not discourage serious negotiation as well as your concession strategy in response to various possible subsequent moves by the other side
• A flexible higher negotiation target range and a flexible lower negotiation discomfort range
• The clients’ “best alternative to negotiated agreement” (BATNA) and “worst alternative to negotiated agreement” (WATNA); for negotiation purposes, parties should accept offers better than their perceived BATNA and reject offers worse than their perceived WATNA

2. Term Sheet

Outline an ideal term sheet. Better yet, prepare a draft settlement agreement containing your standard deal terms with blanks for later completion at mediation or modification in accordance with a final agreement. Once progress is being made during mediation, consider presenting the draft to the other side earlier rather than later in order to focus discussion on key items.

1. Commitment to the Process

Be enthusiastic and committed to the process without just showing up with no or little strategy or preparation, acting like mediation is nothing more than another necessary stop on the litigation train. If the court’s mediation deadline is premature given the particular circumstances of the case, make a timely (within 14 days) motion asking the court to modify the deadline for good cause shown instead of participating half-heartedly in an unripe process. Keep in mind that virtually all court-annexed mediations contemplate some status reporting by mediators, and most judges during subsequent court conferences will ask what happened at mediations in which the case didn’t settle, so it is critical to use your best efforts and participate in good faith in order to avoid possibly alienating the judge who will be trying your case if it doesn’t settle.