The majority of civil litigators believe that they are familiar with the mediation process. All too often, however, attorneys, and some mediators, view mediation and settlement conferences as interchangeable. This view misses the distinction between these two methods of dispute resolution. In the traditional setting of settlement conferences, attorneys have historically “represented” their clients in settlement negotiations by presenting the client’s case, advocating the client’s position and generally taking the active role. This model of active participation by the attorney and passive participation by the party arises from the role of advocacy filled by the attorney in the litigation process in general.
Effective mediation differs dramatically from a judicial settlement conference because it utilizes a model of active participation by all participants, especially the parties. This article discusses the purposes served by attorneys allowing the active participation by their clients in mediation. The article also analyzes the proper role of the “party” in a mediation, and how the type of dispute may dictate the level of activity. This article will explore the benefits of party-participation to the negotiation process, from the mediator’s point of view, explaining how mediation is entirely different from the traditional model of settlement conferences.
TO EVALUATE THE BENEFITS OF PARTY-PARTICIPATION, ONE MUST FIRST LOOK AT THE GOALS OF MEDIATION
Mediation is a means to resolve disputes that the parties could not resolve without the intervention of a third party. Ideally, the parties, and their attorneys, would participate in mediation before a lawsuit is filed. In some cases, early mediation is not possible or practical.
Typically, therefore, the filing of a lawsuit is the initial step toward mediation. A successful mediation is more than a “settlement conference” regardless of at what stage the mediation process occurs. Historically, attorneys, parties and judges felt that if everyone left a settlement conference unhappy but the case resolved, the result was in all likelihood “a good settlement.” The goal of mediation, however, is and should be a path to a settlement that the parties will acknowledge as “a fair resolution.”
PARTY PARTICIPATION HELPS CONTRIBUTE TO REACHING A FAIR RESOLUTION
A mediator’s introduction to the case, from the parties’ perspective, is through listening to each side tell its side of the story. An effective mediator who is an active listener will ask questions of both parties to elaborate, clarify, and confirm each side’s position. By being drawn into the mediation process at this early stage, the parties will feel like the process is occurring for their benefit. On the other hand, if the dialogue in the early stages is between the mediator and attorneys, with the parties taking a passive role, then the parties do not become invested in the process, ultimately making settlement more difficult.
A more satisfactory resolution to the parties is likely to be reached if attorneys encourage their clients to actively participate in the mediation. This approach is most successful when the attorney steps back from the traditional position of advocate, and, instead, assumes the more passive role of counselor who encourages the client to tell their story. More important, this approach is most successful when all parties are present.
Active storytelling also requires active listening by the parties, which is a concept the parties must be encouraged to promise in advance they will do. The mediator must work to make each party feel like they will have a complete opportunity to comment or rebut the story of the other party. An opening session conducted in this fashion immediately involves the parties in the process and allows each side the opportunity “to tell its story.”
The parties should also be permitted by counsel to answer questions posed by the mediator about their position on the case. While some levels of questioning may be better suited to private sessions between the parties and the mediator, general questions of a factual nature will result in numerous benefits from the process. By eliciting facts which help expose the issues, the mediator will be in a position to narrow the issues to those which are impeding the process of dispute resolution and to insure that the parties understand the issues and risks related to those issues. By understanding the issues and risks, the parties will be more amenable to the process of negotiation.
The mediation process, if used efficiently, should provide a forum for the parties to “have their day in court.” They will be allowed to “vent” and to tell their story to a neutral who is willing to listen without passing judgment. They will have the opportunity to tell the other side their position, in the presence of and under the supervision of a trained mediator. This process is often the first big step to opening the minds of the parties to work toward settlement.
On the other hand, if either or both counsel assumes the role of strong advocacy in the initial stages of the mediation, by insisting on presenting his or her client’s case to the mediator as an advocate, the parties may assume a similar posture of inflexibility. Inflexibility impedes the process of negotiation, and often results in one side or the other leaving with feelings that the process, and the result, was not fair.
Another essential benefit to the presence and participation of all parties in mediation is the opportunity to “brainstorm” for creative settlement options when an impasse is reached. Attorneys often look at more traditional forms of settlement in monetary terms. However, the parties themselves may offer creative solutions which can ultimately result in a resolution of a dispute that allows them to walk away feeling that they have reached a fair settlement.
Consider, for example, a scenario where a dispute arises between two neighbors over a fence separating their property. The dispute might involve a possible prescriptive easement, or esthetics, or security. Often these types of disputes require patience, creativity and persistence to reach a fair resolution. In a traditional setting, monetary relief might be the most obvious objective. However, the parties themselves may, during the process, express concerns and interests which cannot be compensated by money. One party or the other might suggest a possible scenario for settlement which is “outside of the box,” that provides a springboard for the parties to effectively negotiate a resolution that works for both of them.
In a traditional setting, monetary relief would often be the focal point of settlement. However, a workable solution which was initiated by one of the parties allows the parties to settle with dignity, and to achieve their goal in a manner which appears fair. This seldom, if ever, happens if all of the parties are not present and playing an active role in all facets of the mediation, or if they rely on their attorneys to present their case from a position based on monetary value.
THE PRESENCE OF ALL PARTIES AT MEDIATION IS NECESSARY FOR EFFECTIVELY UTILIZING PARTY-PARTICIPATION
Counsel for the parties in a mediation must view mediation as a chance to preview the story that will be told at trial by all sides, and the manner in which it will be told. For this reason if no other, all parties should be present, whether or not they are indemnified by insurance. Los Angeles Superior Court Local Rule 12.15 requires that the parties, and in the case of an entity a representative with authority to resolve the dispute, “shall personally appear at the first mediation session, and at any subsequent session unless excused by the mediator.” However, in personal injury cases we have often seen only the adjustor present at mediation hearings, and sometimes even the adjustor may only appear by phone, if permitted by the mediator. Thus, only the plaintiff is physically present at the hearing, a situation which often results in no resolution because no mediation can occur under these circumstances.
Mediation gives the party-witness the chance, in a less formal setting, to tell his or her story. By encouraging a party to attend mediation, and to tell his or her story in his or her own words, counsel has an opportunity to observe how the client presents himself or herself to a trier of fact, and how well he or she handles the pressure. Experienced trial attorneys know that witnesses can react unpredictably when they first testify in court.
In mediation where the defendant is indemnified by insurance, the presence and active involvement of the defendant is still extremely important. The adjustor may be meeting its insured for the first time. The defendant’s presence gives the adjustor the opportunity to evaluate his or her credibility first hand. In smaller cases the defendant is often not deposed and the attorneys do not meet insured defendants until close to the time of trial or at trial. By requiring the insured defendant’s presence at mediation, a mediator will be setting the stage for the outcome of a fair resolution.
Equally important, we often see plaintiffs in personal injury actions who want more than just monetary compensation. A simple apology, or acknowledgment of some responsibility, often goes a long way to reducing an otherwise unreasonable settlement demand. In all types of cases, the plaintiff is often motivated as much by anger as a desire to obtain monetary compensation. When a plaintiff is given the opportunity to hear the defendant’s side of the story from the defendant, the ultimate result is defusion of some of the anger. At that point, one of the major barriers to a monetary settlement is eliminated if not significantly reduced. That can only happen if the defendant is present and is allowed to tell their story at the mediation.
The same considerations applies to the defense and their strategy at mediation. An articulate defendant who presents a plausible explanation for the defense’s position on liability and/or damages may encourage the plaintiff and plaintiff’s counsel to reconsider an otherwise non-negotiable settlement position that would force the case to trial.
PARTY PARTICIPATION WILL NOT JEOPARDIZE THE ATTORNEY/CLIENT RELATIONSHIP IF ATTORNEYS SET THE STAGE FOR THEIR CLIENT TO PARTICIPATE ACTIVELY
What role can the attorney play in this process, without jeopardizing his or her role as the client’s advocate? An effective presentation of a case requires a client who has been properly prepared before the mediation commences. Counsel should prepare their clients for the process by rehearsing their story so that they can clearly express their point of view while appearing reasonable. Clients need to understand that in a mediation they can express concerns, anger and other emotions which may not be appropriate when testifying at trial. Working with the client to effectively present the facts most favorable to their side, while still allowing the client the freedom to “vent,” allows the attorney to mold the client’s story from a position of advocacy. If the client is properly prepared to present his or her story concisely and effectively, the mediation gives counsel the chance to impress the other party, and/or the insurer, both with the story itself and the way the client tells the story.
When done in the confidential setting of mediation, the benefits of this approach far outweigh any downside. Many cases settle in mediation because the opposing party finally understands the issues once he or she has listened to the other party explain for himself or herself the facts, without the flourish or posture of legal argument. Sometimes the fact that an attorney is presenting the facts, rather than the party, will cause the opposing party to ignore the presentation because the storyteller is “a lawyer.” Stereotypes do not vanish simply because the setting is supposed to be confidential and neutral.
As an additional benefit, an articulate party gives an experienced mediator a valuable tool to use when caucusing with the opposing party and his or her counsel and other persons who may effect settlement. For example, experienced defense attorneys know that a plaintiff who presents a well-prepared story can be a formidable adversary at trial. Testimony at a deposition may show how well the plaintiff reacts to hostile questioning. However, mediation presents a different perspective – – namely, how well the party is likely to do on direct examination. Proper preparation and counseling by the attorney is critical to success in this phase of mediation.
The way in which the plaintiff presents their story, even if facts and other information are presented which would otherwise be inadmissible at trial, is also important to the mediator in helping to frame the issues. The parties are more likely to reach a common goal of settlement if the mediator can frame the issues in the same way the parties view them. By listening directly to the parties tell their story, rather than having the story filtered through the lawyers, the mediator can better focus the parties on the issues the parties consider important. Sometimes, as advocates, attorneys miss the issues which are critical to their client, issues which are often not the legal issues which will be heard at trial. Nevertheless, the parties’ issues are often those which stand in the way of dispute resolution, particularly when the cost of litigation reaches financially straining limits.
Mediation, particularly in a complex multiparty case, can be an arduous experience. The mediator can help keep the parties focused on the proceeding by actively engaging them at the outset and keeping them involved throughout the session. While hearing the parties’ stories, in general, is important, a mediator is often the person to help diffuse the antagonism between a plaintiff and defendant, which often drives the litigation to levels which may seem otherwise insurmountable.
No less important, counsel must consider their own interests in the outcome of litigation compared to the interests of their clients. While no one would dispute that an inherent conflict of interest can result where a client is looking for more intangible remedies (such as the apology or other non-monetary remedies) the attorney may be evaluating the monetary value of the case based on a fee arrangement or monetary considerations, such as costs. Each attorney must weigh the value of allowing the client to express their goals that they hope to achieve through litigation against the monetary interests of the attorney. An effective attorney can communicate those issues to a mediator, privately if necessary, who will then be in the position to assist the parties in reaching a settlement which encompasses all of those goals without compromising the relationship between the attorney and his or her client. A fair resolution with those principles in mind will happen if the client is allowed to express himself or herself to the mediator.
A FAIR RESOLUTION MEANS A SATISFIED CLIENT
The importance of active party participation in the mediation process cannot be understated. The goal of mediation should be a result that benefits the parties. Without the direct participation of the parties, cases are less likely to settle, and the parties are less likely to be satisfied with the proceeding, whether the case settles or not. Ultimately, an unhappy client is one who may not return to the attorney in the future, and one who may eventually be involved in yet another lawsuit, this time over the fees charged by the attorney. Effectively using the client in mediation is the key to reaching a fair result in dispute resolution.
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