Jeff Kichaven writes on mediation for the International Risk Management Institute. First published on IMRI.com.
Feeling mischievous? Naughty? Maybe even a little spiteful, perhaps? Want to use that negativity to ruin your next mediation? Sure, why not? It’s easy.
If you’re the kind of lawyer who thinks it might be fun to ruin a mediation, here are six sure-fire ways to succeed.
1: Keep All Parties Uninformed
First, just call a mediator and pick a date. Don’t even tell the other side that you’re doing it, but be sure to let the mediator know that it’s ok. Maybe even say that you are sure that the other side will be ok with it, or something similarly equivocal and misleading. Try to make sure that the other side’s first contact from the mediator is an invoice. After all, everybody should pay their fair share, right? This stunt will virtually guarantee that no mediation will take place at all, and certainly not on the date you have selected, and almost certainly not with the mediator you chose.
Now, even if you have missed this step and worked collaboratively with opposing counsel to pick a mediator and a date, don’t you dare tell coverage counsel about it any sooner than you have to. So what if they are the only ones bringing the money necessary to get the case settled? Why should they be interested in, enthusiastic about, or even prepared for the process? Yes, in fact, don’t tell coverage counsel about the mediation until the last possible minute. If you are lucky enough to have them located in another city, they may not be able to attend at all, or only by telephone. We all know how much less effective mediation is when important people participate only by phone. And they will almost certainly be unprepared to offer a reasonable amount to settle. We also know that it takes insurers some time to process claims and authorize appropriate amounts to get cases settled. Why give the insurer the luxury of adequate time to prepare?
2. Don’t Be Prepared
While we’re on the subject of preparation, there’s lots more you can do to make the mediation go south. Let’s talk a bit about how abuses in connection with mediation briefs can help get the job done.
For starters, you can try not writing a mediation brief at all. We already know that this will mess up the insurer’s ability to get realistic settlement authority. But wait, there’s more. Mediators do a better job when they’re prepared, too. So leave the mediator guessing about what the case is even about until you show up at her office that morning. You’ll have to spend lots of time explaining the basic facts to the mediator, leaving less time for the negotiation and everything else that has to get done. By the time the negotiations can “get serious,” everybody will be tired. Maybe somebody will have to catch a plane. Your chances of concluding a settlement will go down. Perfect.
Without having prepared a brief, you will probably not be as well prepared either. So what? Writing a brief will only make you think through the factual and legal issues in advance, anticipate what the other side may have to say, and plan a negotiating strategy. If you’re trying to ruin the mediation, these details will only cramp your style.
Moreover, a brief can be an excellent starting place for your preparation with your client. When the client reads your brief, or at least a near-final draft of it, and then meets with you, you have a framework for discussion, and an opportunity to discuss candidly the weaknesses as well as the strengths of your case. This makes the client better prepared for some of the candid discussion and questioning he is likely to get from the mediator. But since an antagonized client is a wonderful foil if your goal is to ruin a mediation, don’t bother to use the brief as an effective tool in client preparation.
While we’re at it, why not skip any preparation with your client at all? Sure, you may want to give the client directions to the mediator’s office, but is anything else really necessary if your goal is to ruin the mediation? Let the client show up with all the anxiety that lack of preparation can foster. Does the client have questions? Too bad, she’ll probably figure things out “in context.” You are busy with more important things than making sure your client is comfortable with the process and everyone’s role in it. Like figuring out more ways to make sure that yours is the mediation from hell.
Oh, yes, before we leave the subject of mediation briefs, if you do have to prepare one, like, maybe, if a mediation-savvy client insists, do it late. Make the mediator’s day by causing the warm, familiar sound of a fax machine whirring-up to fill the mediator’s ears any time after 6 p.m. on the day before the mediation. Since you have chosen a busy mediator, you know she will be working late and will be there to receive it. But you also know that she’ll probably be too tired, and will lack the time anyway, to read it very thoroughly. So you still achieve your goal of leaving the mediator largely unprepared. Then, you can really cinch the mediator’s appreciation by asking, with a tad of smugness and without apology, as soon as you see the mediator in her reception area the next morning, “You DID get my brief, didn’t you?”
3. Fail To Communicate
If the mediator should call you before the mediation, don’t take the call, and don’t return it, either, at least not at any time when the mediator can reasonably be expected to be in her office. Even if there’s no mediation brief, a conversation with the mediator can sometimes fill that gap. But who the heck would be interested in such a thing? Worse, some top mediators use those calls to explore important subjects that a lawyer may not be comfortable putting in writing, such as your candid views of opposing lawyers or issues with your own clients. Since this information may help the mediator be more effective, you have no interest in sharing it.
4. Confuse Your Client
Now, when you get to the mediation, keep your client as uncomfortable as possible. Don’t just be professionally courteous to opposing counsel, be improperly familiar. This will cause your client to think that the two of you are in cahoots against him to dump this case, even if the terms are not favorable. Don’t let the mediator have a private chat with you and your client at the outset. Mediators use that time to build rapport with and gain the confidence of your client, who, chances are, the mediator has never met before. But what good does that do you? Mediators use that goodwill at day’s end to help you break bad news to your clients, lessen unrealistic expectations, and get cases settled. Since you are there to ruin the mediation, though, and certainly not to get the case settled, forget it.
5. Rush and Inflame the Proceedings
Once at the mediation, insist that everyone race into a Joint Session and speak their piece. No reason to work with the mediator or opposing counsel or even your own client to customize the process to suit the needs of the particular participants at a particular moment in time. Gosh, that could only increase the likelihood of success. You would much rather make everyone listen as you drone on endlessly in your opening comments.
If you could get yourself to drone on endlessly, on boring and tangential subjects, in your opening comments, that would be more than enough to derail most mediations. But you can do worse. Antagonize! Inflame! Accuse! Blame! Lard it up with a raised voice, a sarcastic tone, a pointed finger just for emphasis. Those people sitting across the table from you, those are the ones who you want to “get to yes.” Or maybe you don’t. If you want to ruin the mediation, get them mad. Don’t you dare show any sign of curiosity about how anyone else sees the situation, or about anyone else’s interests or concerns. Don’t you think that asking a question is generally viewed as a sign of weakness?
When you’re in caucus with a mediator, don’t let the mediator ask any questions, either. Those questions are often designed to do no more than explore potential weaknesses or vulnerabilities in your case. Sure, most cases have weaknesses, but not yours. At least not based on what your client told you at your initial meeting, before all that pesky discovery got in the way. So what if your case has some weaknesses? Maybe if you ignore them, they will go away.
6. Run Away
Finally, if, despite your best efforts to ruin the mediation, everybody else seems to have reached an agreement on a settlement, figure out some excuse to leave before some form of settlement agreement is signed. At least in California, an oral settlement reached in a mediation is no settlement at all. Try to shake hands and scram. Then take your client out to dinner and work him over. Buyer’s and seller’s remorse are not that hard to pique if you know how. And you are the kind of lawyer who knows how.
Sure, there are lots more tricks to this trade. A lawyer on the dark side of this force can ruin a mediation in untold ways. Be aware of the signs of sabotage and address them early.