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Introduction
Despite the growing use of mediation, there is uncertainty
on the part of many attorneys concerning how to prepare
for a mediation and equally important, how to prepare
their client for mediation. Often, the lack of appropriate
preparation and understanding about the process contributes
to the failure of the mediation. The purpose of this
article is review the issues to be addressed by an attorney
and her client in order to prepare effectively for the
mediation process
Preparing for the Mediation
Once the parties have agreed to mediate, a lawyer
and client should meet a reasonable time prior to the
mediation to prepare. Just like preparation is critical
in negotiation or litigation, it is critical in mediation,
also. The following section covers the topics that should
be discussed with a client prior to the mediation. Preparation
for mediation should not be discounted. Indeed, recent
studies indicate that cases are more likely to settle
in mediation if the client is fully prepared for the
mediation.
Explain the Process of Mediation
Don't assume your client will fully understand the
mediation process. Take care to explain the difference
between mediation and litigation, pointing out that
the mediator is not empowered to decide the dispute
and will not likely even render an opinion about who
is right and who is wrong. Explain the mediator's role
carefully, mentioning that the mediator may function
as a devil's advocate. Clients sometime incorrectly
assume the mediator is taking sides when he raises questions
about a party's position in the litigation.
Because mediation contemplates a full, complete and
candid discussion about the dispute, tell your client
about the rule of confidentiality and explain that what
is said in the mediation cannot be used against the
parties later in the proceeding, nor can the mediator
be subpoenaed to testify. There may be information,
however, that you do not want disclosed under any circumstance.
If so, review that information with your client so that
nothing inadvertently slips out.
Because the lawyer's role in mediation is quite different
than in litigation, the differences should be explained.
The presentation of information about the case will
be quite truncated and so the client should not expect
the pomp and circumstance associated with full blown
litigation. Moreover, remind your client that your role
will be much more conciliatory than it would be in litigation
and explain why that must necessarily be the case in
mediation.
Indeed, explain to your client that if mediation is
to be successful it is important that the parties enter
into the process in good faith, with an open mind, and
a willingness to consider a fair resolution of the dispute.
During the opening session I will restate this and normally
will ask the parties to affirm that they are participating
in this spirit.
Client Participation
One of the guiding principles in mediation is that
it is a process that empowers the parties to resolve
the dispute on terms they find mutually satisfactory.
A client's active role in mediation is dramatically
different than the more traditional role of a party
in litigation which is to stand quietly by while the
attorney does all the talking. Because mediation is
intended to be a process in which the parties play a
major role, lawyers should prepare their clients to
be active participants in the process. Of course, this
does not mean that the clients will be expected to discuss
legal theories. But the parties should be prepared to
discuss the facts at issue, and of course, the terms
of settlement. The mediator will probably speak directly
to the client during the process. The parties should
be prepared for this.
Whom to bring to the mediation
Most attorneys understand that a party representative
with appropriate settlement authority should be in attendance
at the mediation. Is the defendant expected, however,
to have someone at the mediation with authority to settle
in the amount of plaintiff's demand, regardless of how
high? Of course, not. The parties should come into the
mediation represented by individuals with appropriate
settlement authority.
It is important, however, that parties arrange in advance
to be able to communicate with superiors where additional
settlement authority may be needed. Nothing is more
frustrating when at the end of the mediation, and only
a few more dollars are needed, the company officer needed
to sign off on the final settlement is in another part
of the country, has gone home, or is otherwise not reachable.
Obtain office and home numbers of everyone who will
need to be consulted during the process and if a final
settlement is reached.
There is another aspect of this issue that is often
overlooked. All disputes involve relationships between
people. Sometimes the parties involved have so much
emotional baggage in defending the decision they made
which gave rise to the dispute, that settlement is quite
challenging. When a business is a party to a dispute,
it usually is possible to include an additional representative,
not directly involved in the dispute, to help bring
a more objective examination of the situation.
Mediation Memoranda
A hidden cost of mediation is the memoranda the parties
often prepare to provide the mediator with background
about the dispute. Also known as settlement conference
memoranda, these memoranda are generally required by
judges in judicially-supervised settlement conferences.
Mediators can be more flexible than judges and offer
parties alternatives. If the mediator does not insist
upon a specially prepared memoranda, perhaps the parties
can agree to provide the mediator with correspondence,
pleadings, disclosure statements or other documents
that already exist.
If a mediation memorandum is prepared, counsel will
need to know whether it should be exchanged with the
other side or whether it should be submitted to the
mediator confidentially, and not shared with the other
side. Although the common practice is to submit these
documents to the mediator or settlement judge confidentially,
I recommend that the parties exchange them. The more
each side knows how the other side views the dispute,
the more likely the dispute will settle. If there is
any information that is truly confidential, the parties
can provide that to the mediator in a separate document,
or they can tell the mediator during the first opportunity
at the mediation.
If the memorandum is submitted confidentially to the
mediator, it technically obligates the mediator to keep
confidential all the information contained in the memorandum.
Because most of the information discussed in these memoranda
is not confidential at all, it is needlessly confusing
to the mediation process to suggest that undisputed
facts, known to all parties, be treated confidentially.
Related Litigation
Occasionally, there are related claims and parties
to a dispute. A related case may be pending in court,
or there are claims in the dispute involving other parties
who are not intending to be part of the mediation. This
is important information for the mediator, particularly
because the parties themselves can sometimes inadvertently
overlook the advantages of bringing all outstanding
claims and related parties into the mediation for a
complete resolution of the dispute. Knowledge about
other related claims is critical for the mediator. The
parties normally want closure to the dispute. The motivation
of the parties to settle will be enhanced if settlement
means resolution of all claims not just a piece-meal
solution. Moreover, if there are other disputes, the
parties to those disputes have additional resources
which can be contributed toward the resolution. Putting
it bluntly, new parties can mean additional sources
of money which may expand the settlement pie.
The Opening Statement
Most settlement conferences before judges, and many
mediations, begin with an opening statement made by
the attorneys. Attorneys often inquire about the necessity
of making this statement and how to present it. Counsel
should know prior to the mediation whether such a statement
will be expected. There are several schools of thought
about this.
Some mediators favor an opening statement. Their rationale
is that the parties should be able to hear first hand
from opposing counsel about the case and the other side's
position in the dispute. According to the proponents
of this approach, the opening statement is an aspect
of "reality therapy" which is important to
the success of the mediation. The assumption is that
each party's lawyer has not presented very forcefully
the opposing side's view to his client and that the
parties themselves should hear directly the other side's
perspective on the dispute. Remember, however, everything
that is communicated in the opening statement can be
communicated by the mediator during a later private
caucus.
If there is to be an opening statement, counsel should
be firm, but polite. Remember the mediation adage--be
soft on the person, hard on the problem. Although it
is theoretically possible that counsel can make an opening
statement that adequately conveys a position in the
case without offending the other party, based on my
experience in many mediations, this is the exception
rather than the rule.
It is because the opening statement carries great risks,
I now dispense with it in most cases. I believe that
an advocacy presentation at the outset of the mediation
will normally only cause the parties to become further
entrenched in their positions. These statements necessarily
tend to "throw stones" at the other side,
and when mud is being slinged, a person's reaction is
to sling back. The process of settlement is not furthered
when the parties dig their heels in even more before
the real work at settlement even starts.
The proponents of the opening statement are correct
in believing there is essential value in the reality
therapy of the mediation. It is not necessarily the
case, however, that the reality must be brought home
by opposing counsel. The mediator has the primary responsibility
to make sure the parties are fully informed about the
consequences which will occur if the dispute is not
resolved, and so it is not necessary, in my opinion,
that opposing counsel deliver that message during the
opening session.
I recognize that there may be exceptions to this rule,
particularly where the parties themselves speak in a
joint session. This, of course, must be handled with
care. If a lawyer intends to allow his client to speak
in the presence of the other side, careful thought must
go into that presentation.
Identify interests of each party
Mediation allows the parties to resolve disputes in
ways that meet their needs and interests. The effectiveness
of the mediation can be enhanced if the parties and
their attorneys consider their interests and the interests
of the other side in anticipation of the mediation.
Lawyers and clients will frequently be the best source
of creative ideas to resolve a dispute. Don't wait until
the day of the mediation to rely solely on the mediator
to tap that creativity. Well before the mediation, begin
focusing your attention on the topic of "interests."
As you prepare for the mediation ask your client to
articulate clearly her own interests and needs, and
equally important, consider how the opposition would
define its interests and needs. Indeed, it may be useful
to ask your client to specifically identify the other
party’s perspective on the dispute, and as the
attorney, you should also present the other side’s
arguments to your client as impartially as you can.
Know the Case
It's surprising that the level of preparation for mediation
varies so greatly. Perhaps because mediation is a nonadjudicative
form of dispute resolution, the need to prepare for
mediation is perceived to be less than the need to prepare
for trial. Certainly, the preparation for mediation
is quite different than for trial. There are no witnesses
to prepare. There are no exhibits to be marked. There
is no opening statement and closing argument to rehearse.
But just like in trial preparation, in preparation
for mediation, good attorneys will master the facts
and the law pertaining to the dispute. The result of
the mediation is a direct function of the party's position
and its ability to advocate that position in a persuasive
manner. The resolution of a dispute through mediation
will be somewhere along a continuum between the parties'
respective positions. Where resolution is achieved along
that line is directly a function of the respective strengths
and weaknesses of the parties' positions and the level
of preparation and advocacy presented by the parties
and their counsel.
The party who is better prepared with an understanding
of the facts and the law, and better able to articulate
why his or her view of the dispute is the correct one,
is undoubtedly more likely to achieve a result favorable
to his or her position. As part of this preparation
identify information that is needed before settlement
can occur that is not in your possession. If a party
believes it needs certain information upon which to
make informed decisions about settlement, it must seek
that information before the mediation. Once counsel
has determined whether any additional information is
needed, counsel should then focus on the strengths and
weaknesses of their own case, and their opponent's.
During the mediation, each party must arm the mediator
with arguments and analysis about their respective positions.
The mediator's ability to facilitate a resolution is
greatly enhanced if the parties and their counsel provide
the mediator with arguments that will impact the resolution
of the case.
Discuss Possible Outcomes
During the mediation it is common for the mediator
to explore with the parties possible outcomes of the
dispute. Surprisingly, many lawyers do not discuss the
range of outcomes in litigation as fully with their
clients as might be expected. Get a head start on this
critical topic before the mediation.
Cases settle because the parties choose the certainty
of the agreement reached during mediation over the uncertainty
of the resolution if left to a trial, as well as the
transactional costs (e.g., time, money, emotion, etc.)
of continuing on with the dispute. Generally speaking,
the result in litigation is uncertain. The discussion
of possible outcomes of the dispute between the lawyer
and client will be important to the success of the mediation.
Estimate costs of continuing litigation through
trial
This is another critical component of the mediation
which can be aided by pre-mediation preparation. Very
often, a prevailing party in litigation will be able
to recover all or a portion of its fees from the opposing
party. Thus, by resolving the dispute through mediation,
a party will avoid its own costs and legal fees, and,
depending upon the outcome of the case, avoid the possibility
of paying their opponent's fees. Fully understanding
the economic cost of continuing on with the dispute
always facilitates settlement.
Develop settlement options
This is the last piece of the mediation mosaic. Although
parties often look to the mediator for creative solutions
to problems, in truth, the parties' themselves are generally
in the best position to develop the creative solutions
to the dispute. Start before the mediation by discussing
this topic with your client as part of the pre-mediation
preparation discussions.
Ask your client to identify and list all of the things
the other party can do to satisfy your client's interests.
Ask your client to identify and list as many possibilities
of what he can do to satisfy the perceived interests
of the other party. In particular, ask him to list
all necessary non-economic components of a settlement.
Surprisingly, many lawyers think of these issues for
the first time as the final settlement terms are being
discussed.
Settlement Terms
In every settlement there are critical elements that
must be included from each party's perspective. These
issues should be discussed before the mediation. These
are often noneconomic issues which are generally easily
to resolve, particularly where they are articulated
early in the process. Examples include confidentiality,
appropriate releases, obtaining settlement approval
by public agencies. Make a list of these topics beforehand
so last minute introduction of critical terms can be
avoided.
The important discussion to have before the mediation,
however, concerns your client's position on the ultimate
issues in dispute. Assuming the issue is money and how
much gets paid by one side to the other, the parties
should make some judgment about where they need to be
when the process ends. It is critical for your client
to understand, however, that if the mediation is successful
it is very often the case that the party receiving a
payment will get less than he or she anticipated, and
the party making the payment will pay more than he or
she anticipated.
The reason for this is that the parties' settlement
positions will change as a result of the mediation
process. When the parties assess their positions before
the mediation, that is done without the benefit of
the give and take discussion that occurs during the
mediation. It occurs without the important feedback
received from the mediator.
Thus, it is unwise to decide in advance with your client
on a bright line beyond which you will not move. It
is better to think in terms of settlement ranges, reminding
your client to approach the process with flexibility.
Alert your client to the give and take that will occur
during the mediation, and that if settlement is to be
achieved, their most optimistic expectations may not
necessarily be realized.
There is important new research that documents the
use of mediation in a variety of contexts. This research
sheds light on steps that counsel can take to help promote
settlement. These studies of programs in North Carolina,
Minnesota and Ohio, indicate that cases are more likely
to settle in mediation if there is less disparity between
parties’ initial negotiating positions. The data
also confirms that cases are more likely to settle if
the attorneys cooperate and if both the attorney and
client participate fully in the mediation. |
