Top 10 Tips and Tactics for an Effective Mediation
By Michelle Clardy
What do I need to do for this mediation to be a success? That question is one a litigator should always consider when preparing for mediation. For each mediation, there may be a different measure of “success.” If your case is in the early phases of discovery and you want to test the settlement waters, “success” may be learning more about the other side’s positions on settlement and case strategy. Alternatively, you may have been embroiled in litigation for years in a very contentious case, and your definition of “success” may be getting difficult clients to see strengths and weaknesses of the case in a last effort before trial.
Regardless of your definition of “success,” there are certain tactics and general preparation tips that help ensure you are prepared to effectively negotiate for your client. Although the tips that follow are by no means comprehensive, they are a good guideline of essentials to consider in any mediation.
10. Consider the Timing
Timing can be critical. If you want to look at early resolution of a case, a mediation might be beneficial prior to taking expensive depositions. Alternatively, if you’ve gone through the entire discovery process, mediation may be beneficial before trial to see if settlement can be reached to avoid the expensive costs of trial. That being said, mediation is not useful if neither side has any expectation or intention of settling the case. If the opposition suggests mediation and you know your client is absolutely against settlement, don’t mediate. Doing so only creates further animosity and wastes time that could be used for discovery or trial preparation.
9. Be Prepared
It is important to convey to the mediator and opposing party that you are prepared and well versed in the facts and law of your case. Attorneys that are unprepared on those fronts are automatically behind in the mediation. You can’t sell your position and case strengths if you don’t know what they are. Take the time before the mediation to review and address key facts and issues of law.
8. Research, Research, Research A large factor in negotiating successfully for your client is doing the necessary research. What are you researching?
• Research your mediator: Determine the approach and experience you want from your mediator and ask peers about experiences with proposed mediators. It is important to ask not only about experiences with a mediator who has served in that capacity for other cases, but also to inquire about the mediator’s prior legal experiences.
• Research key legal issues: Review cases for and against your position on key legal issues and be prepared to explain why your position is correct—having the cases with you doesn’t hurt.
• Research jury verdicts: Conduct jury-verdict analysis for cases with similar facts to determine what verdict might be expected at trial. It’s important to know if facts similar to yours resulted in a million-dollar verdict or summary judgment for failure to prove an essential element. Be prepared to distinguish facts or legal issues from jury verdicts you believe the other side will use in support of its damages analysis.
7. Use the Mediation Statement and Opening Statement
Use the mediation statement as a roadmap for the mediator. The mediation statement is your first opportunity to gain credibility and support with the mediator. Be concise in your positions, and set forth the background facts, contended facts, legal theories, and defenses for the case. Also, anticipate and address the other side’s positions. If the mediation statement is done well, the mediator will have a quick synopsis of the case and settlement positions.
The opening statement is one of the few times you will have the opportunity to speak directly to the opposing party. Use this to your advantage. Speak to the opposing party in your opening. Explain your positions, including both strengths and weaknesses of your opponent’s case, and why at the end of the day you believe your client will prevail. Try to avoid being overly confrontational or accusatory. If your opening statement has only the effect of further polarizing the negotiation, you might as well go home.
6. Prepare Your Client
Before the mediation, meet with your client and go over your negotiation strategy, what you expect your client’s role to be in mediation, and how the mediation process works generally. If you have a client that has never participated in mediation, informing your client of how the process works and what he or she can expect will help alleviate anxiety and keep your client focused on the settlement issues. Make sure you have authority, or are able to get authority, from your client during the mediation.
Many times insurance companies are involved in litigation. If the claims adjuster is not attending the mediation, communicate with him or her before the mediation and go over the strengths and weaknesses of the case.
Keeping the client and insurance company informed can only help the mediation process. Make sure in these discussions that you don’t oversell your case. Giving your client a false expectation of the result will not help resolve the matter at the end of the day.
5. Play the Devil’s Advocate
To be prepared for any mediation, you must give consideration to the strengths and weaknesses of your opponent’s case. Try to consider what your approach would be if you were on the other side. What facts and legal theories would you emphasize? What would you try to negotiate as a settlement price? If you can look at the facts of the opposition and know its strengths and weaknesses, you will be better prepared to address and counter those facts in your negotiations.
4. Be Principled
This theory is one that cannot be overlooked in negotiating at any time, but particularly in settlement discussions. Be principled in your negotiating. What does that mean? If you make a counteroffer or demand, make sure it is because the other party has demonstrated something that you believe actually impacts the value of the case. Know and explain to the mediator and opposing counsel why you are making a counteroffer or demand. If you are mediating a case and you begin to go back and forth on the settlement numbers, you convey to the other side “I have a certain amount of authority, and I’m just negotiating price until I reach it.” At that point, you’ve lost credibility and negotiating power.
3. Don’t Be Afraid to Walk Away (or Continue Negotiations!)
If it is apparent from the settlement figures being negotiated that the parties are worlds apart, don’t be afraid to end the mediation and walk away. It is only frustrating to both the parties and counsel to work on a mediation that has no chance of settlement.
Alternatively, if the parties are close to a deal, but it is the end of the day, agree to continue the negotiations for a week before reengaging in the litigation process. Doing so will give the parties a chance to consider their settlement positions and see if a final deal can be reached.
2. Use a Negotiating Approach That Works for You
Everyone has his or her own approach to negotiating. Some individuals are quiet and unwavering, others are loud and tenacious. Whatever your preference, know your negotiating style and use it to your advantage. Play to your negotiating strengths.
If you are the quiet type, use your steady approach to convey strength and conviction in your positions. If you tend for the more flamboyant approach, use your outgoing nature to intimidate. If you do tend to the more aggressive approach, remember you have an intermediate third party conveying your position. Don’t be so aggressive that you irritate and alienate your mediator.
1. Listen to the Mediator’s Observations
Mediation is the opportunity for both sides to hear their strengths and weaknesses. So, listen. If the mediator says, “Hey, I think you may really be in trouble with your expert’s report on the issue of fault,” consider his position and reasoning. If the case doesn’t settle, you can use the mediator’s observations to conduct further discovery, amend pleadings, or supplement expert reports. If the mediation is right before trial, the mediator can be an invaluable third party to practice the persuasion of your trial themes.
Prepare for and use mediation for the negotiating tool it is—a great opportunity to learn more about your opposition’s strengths and weaknesses, a chance to test trial theories on an impartial third party, and an opportunity to resolve litigation in a cost-effective manner.
Michelle Clardy is with Polsinelli Shughart PC in St. Louis, Missouri.
“Ten Things Your Expert Neglected to Tell You,” by Francisco Ramos, Jr., 2009, Commercial & Business Litigation, available at http://www.abanet.org/litigation/litigationnews/practice_areas/commercial-tips-foreffective-mediation.html. ©2009 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any
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© Copyright 2009, American Bar Association.