Some Tips on How to Prepare for a Successful Mediation
By James P. S. Leshaw
If your mediation goes well, it will be the last day of your litigation. It therefore makes sense to make the same effort preparing for the mediation as you would for trial. Here are a few tips to increase your likelihood of success at mediation.
1. Educate Your Client About the Mediation Process.
Educate your client about the mediation process and how it works. Discuss the confidential nature of the mediation process, tell them about the mediator and his or her background and experience as well as why the particular mediator was chosen. Explain to the client that the mediation is an opportunity to resolve the litigation then and there, eliminating further time, expense and uncertainty inherent in the litigation process. Make sure the client understands that as opposed to a judge who is likely to issue a judgment for a fixed amount of money (or no judgment at all), the mediation process permits the parties to reach a resolution that is flexible and creative, potentially even a win-win situation. Make sure the client understands that part of the mediator’s job is to take an objective look at the facts and law and help all sides to recognize the weaknesses in their case. Discuss with the client who should be at the mediation and, just as importantly, who should not be at the mediation. Make sure the client understands the dangers of drawing lines in the sand or issuing ultimatums – the mediation process is fluid and positions and bottom lines can and often do change throughout the course of a mediation. Help the client to remember that the mediation process is a negotiation process and, as such, they can be hard on the facts but should be soft on the people.
2. Let Your Client Educate You.
Have conversations with your client before the mediation, including the client’s goals, constraints, timing issues and settlement parameters (understanding that these goals and parameters may change throughout the mediation process). Understand any other issues that might affect the client’s need or desire to settle. Learn whether there are any changes that might affect the availability of an important witness such as sickness or termination of employment, whether there are recently-discovered facts or documents that could affect the outcome of trial, and whether there are changes in the market or subsequent events that might increase or decrease a party’s damages. Get thoughts from your client on likely settlement structures that might be desirable or acceptable (or undesirable and unacceptable) to all parties. Understand whether there have been market or other events that increase or decrease one side’s leverage or need to settle.
3. Educate the Mediator
A good mediator is your best ally in the mediation. Just as you expect the mediator to tell you what is wrong with your case, you need to arm the mediator with the facts and law to permit him to better critique your opponent’s case. This will also permit the mediator to evaluate your case and be candid as to its strengths and (particularly) its weaknesses. Make sure the mediator understands your client’s goals and limitations, your client’s perception of the opponent’s goals and limitations, thoughts on settlement strategies or impediments, and anything else that might help to get a dispute resolved.
4. Mediation Briefs
Prepare your brief well in advance of mediation, particularly if you plan to share it with the other side. Mediation briefs serve several purposes. They help to educate the mediator. They also help to educate the other side’s decision makers. This is especially true if there is a decision maker on the other side that is not participating in discovery or otherwise involved in the day to day aspects of the litigation. Examples include where settlement authority will come from an insurance company, senior management, a board of directors or guarantor. These decision makers may not be aware of the weaknesses in their case or may not have otherwise been fully (or accurately) educated by their representatives with first-line responsibility for the litigation. Finally, the process of drafting a mediation brief may help you and your client to better recognize the strengths and weaknesses of your own case.
5. Timing is Important
Timing is important but there is no “bad” time to mediate. Mediation can be attempted before litigation is commenced, at the beginning of discovery, the end of discovery, immediately before trial, or any other time in the dispute resolution process. Each has its own advantages.
A significant advantage of an early mediation is the possibility of reaching a resolution before there has been significant time, expense and lost sleep spent on litigation. Another possible advantage is reaching an agreement before the other side discovers some fact known or unknown to you which is going to increase the cost to your client of a later settlement. It is, however, sometimes difficult for one side to settle if there is still some unknown fact on the other side. For this reason, you can consider asking the mediator to get a particular fact or piece of information from the other side before the mediation – this will generally be something that would be turned over anyway during the course of discovery if there is no settlement at mediation. You may be surprised by the willingness of the other side to accommodate the request. Likewise, if the other side sends a message through the mediator that there is a critical piece of information they need before they can settle, you should consider providing that crucial piece of data. Similarly, if you are aware of very strong facts that the other side is likely to discover during discovery, share those facts with the mediator and the other side – they only increase your leverage in the mediation.
And speaking of timing being everything, consider when to suggest a mediation. One school of thought is that you suggest the mediation when you have increased leverage such as after a positive deposition, the filing of a case dispositive motion or entry of a favorable order. The flip side of this theory is that the other side may be reluctant to agree upon a mediation with a gun to its head or a bruised ego. One way around this is to discuss the timing of a mediation while discussing the scheduling of discovery or other “preliminary” matters. I have had many a deposition scheduled 3 or 6 months in advance. This way parties and the mediator have the mediation on their calendars, eliminating the scheduling issues, ensuring that neither side feels they have a gun to their head in connection with the scheduling of mediations, and permitting all parties to conduct discovery and file necessary motions in advance of the pre-scheduled mediation.
6. Choose the Right Mediator
A mediator should not simply be a messenger for the parties. A good mediator will be able to independently evaluate each side’s case and its prospects for a win or loss. A mediator who is experienced in a particular area of the law or industry can help devise solutions that the parties may not have considered, will better understand impediments to settlement on all sides and will be able to more cogently demonstrate and advocate the strength and weaknesses of all sides of the case, thereby increasing the likelihood of a settlement at mediation. The “right” mediator will also have the credibility with lawyers and clients to convince them their case may have more holes than they realize.
7. Pre-Mediation Calls with the Mediator
Mediation is more like a dance than a ball. Many cases will not settle in a single mediation session for a variety of reasons. Having pre-mediation calls with the mediator will often increase the likelihood that the first in-person session will also be the final session in a successful mediation. I believe the time for the mediator to learn about the merits of the case and settlement dynamics is before the start of the mediation, not while lawyers and clients are sitting in a conference room! I almost always have pre-mediation calls with the lawyers for all parties after reading mediation briefs. This helps me to better understand the dynamics of a case and to create a more advanced starting point for the in-person mediation session. It also helps to give lawyers a preview of some of the weaknesses in their clients’ cases, which they will hopefully share with their clients before the mediation, thereby helping to adjust clients’ expectations before the mediation rather than at the mediation when positions may be more intractable. It will also give parties an opportunity to consider settlement alternatives before the commencement of the in-person mediation session. Finally, it helps to preserve valuable time during the in-person mediation session, thereby making the process more efficient. I have settled more than a few matters on these calls, thus eliminating the time and expense of the in-person mediation session altogether.