The following are ten time-tested “commandments” for legal counsel who find themselves preparing for the facilitative mediation of one of their cases.
1) Make sure you will know the value of your case. Determine whether there is some vital information that you need to value the case but which you definitely will not be able to obtain at, or before, the scheduled mediation. If this is the case, you may want to adjourn the mediation.
2) Contact the mediator. Find out his or her philosophy of mediation (facilitative v. evaluative). Determine how they normally conduct a mediation and how they see the role of counsel (active v. passive). Ask if a written mediation submission is expected, and, if so, what it should contain. Discuss the advisability of a pre-mediation counsel conference (in-person v. by telephone). Advise the mediator of any key documents that you need and have not been able to obtain from the other party. Make sure you understand how the mediator calculates his or her fee and how it is to be divided among the parties.
3) Get your case together. Research the basic cause of action as well as any evidentiary or procedural issues that have come up or are likely to arise. Try to obtain documentation (affidavit or deposition transcript) of any pivotal testimony. Have copies of any documents you plan to present to your opponent for the first time. Have a fair valuation settlement range and some objective basis for calculating that range.
4) Be prepared to listen and to negotiate. Mediation takes a radically different mind-set than litigation. Be prepared to make that shift. This is a no-risk procedure given the total confidentiality of mediation. You should be willing to show your “best cards” and to acknowledge that your side does have some problems. You should be prepared to, perhaps for the first time, listen intently and silently to the other party and their counsel.
5) Prepare your client for mediation. You need to meet with your client in advance of the mediation to discuss the nature of mediation, the mediator, the strengths and weaknesses of your case and the interests of your client that need to be addressed in any mediated agreement. Make sure that your client understands the downside risks, ambiguities and costs of continuing litigation. Your client should be dissuaded from going into the mediation with the attitude that “this is my bottom line; take it or leave it”. They should be prepared to articulately present their position in an honest fashion. They should understand that you are there to explore settlement possibilities not to attack the other side. Their focus should be on the future rather than on the past. You should reassure the client that you will be setting next to them throughout and that they can consult with you in private at any time. Remind them that the mediator can not force them into a “deal” that they do not accept. You should also remind them that if no settlement is reached, you will return to preparing to try the matter in court for them.
6) Prepare your core case and strategy. Understand that you will not really be speaking to the mediator; rather you will be speaking to the other party. Be prepared to explain your best arguments in a forceful yet respectful manner. Be prepared to respond to objections and questions about your case. Understand what is really most important to your client. Discuss with your client possible non-traditional methods of settlement. Agree between yourselves how much the client should participate, bearing in mind that, normally, the client will be expected to present their position and to directly respond to questions and suggestions. Explain the wisdom of parties using the mediator to “float” possible offers or resolutions to the other side without committing themselves. Advise your client regarding their right to meet privately with you; or for you both to meet privately with the mediator. Agree with your client as to the key points to be made in your “opening statement”.
7) Make sure you will have a “quorum”. It is aggravating and pointless to conduct a mediation only to discover that some key person is not present. Key persons include the trial attorney for each client, each party, a representative of any potentially liable insurance carrier who has adequate authority, and any other person whose approval would be required for a comprehensive settlement of all claims and interests. If you represent a corporate or institutional client, make sure that you have a person with adequate authority to consent to a settlement who is knowledgeable about the facts of the case and with whom you have discussed settlement options. Make sure the mediator knows who this person will be, what their institutional position is and what their general range of authority will be. Having “the home office” available by telephone is generally unsatisfactory. Make sure the mediator understands up-front if any mediated agreement will have to be finally approved by your client’s governing board.
8) Come to the mediation with a positive attitude. The attorney who tells the mediator “We want to settle but the other side is not going to be reasonable” often is indicating that he or she has a firm settlement value in mind and has given-up on the other side simply because it has not accepted their valuation figure. This is a self-defeating strategy. The attorney who has a studied judgment as to the reasonable range of value of their case and understands that it is in the interest of their client to reach a quick and final (i.e. non-appealable) settlement, in or near that range, is much more likely to get their client what they need in mediation.
9) Allow more time than you think will be required. It is very upsetting to have nearly reached an agreement after a long, difficult mediation and have one of the attorneys suddenly announce that they have to leave for another commitment. Counsel should normally try to set aside the rest of the day for any serious mediation hearing. Sometimes mediations are quick but often they move slowly. Prudence dictates that counsel be able to stay as long as necessary to reach a full agreement. If an adjournment is required due to failure to allot enough time, new problems and some backsliding often appear and the cost and expense increase.
10) The secrets to success at mediation are, I submit: a) Knowledge of your client’s needs b) Knowledge of all the facts c) Knowledge of the relevant law d) Knowledge of your opponent’s needs and “hang-ups” e) Knowledge of, and acceptance of, the mediation process f) The ability to actively listen g) The ability to subordinate your ego to the real interests of your client h) The ability to trust and utilize the mediator to help your client i) The ability to negotiate openly, fairly and creatively j) The ability to help draft a mediation agreement that clearly resolves all issues, present and future.
These ten tips should assure that counsel will be well prepared for, and effective at, their next facilitative mediation.
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