Volume 10, no. 3
Preparing for Successful Mediation
By Lawrence R. Mills
Just as mediation is more art than science, I’ve learned the hard way over many years that there is also an art to advocacy in mediation. Although not all cases can or should settle in mediation, if you’re going to take the time and trouble to retain a mediator and schedule a mediation conference, thorough preparation will increase the likelihood of a successful outcome.
Once you decide to take a case into mediation, you need to select a mediator with a personality, approach, and experience suitable for the case. In choosing a mediator, I regularly consult with other lawyers, institutional alternative dispute resolution (ADR) provider organizations (such as the American Arbitration Association and JAMS), and mediators’ ADR profiles that may be published or available through the Internet. Although conventional wisdom characterizes mediation styles as either evaluative or facilitative, in reality there is a broad spectrum of mediator styles, and a particular mediator may adapt his or her style to the needs of the case. Don’t overlook the possibility of having one of your peers—a lawyer who is not necessarily trained as a mediator but has handled cases like your case—serve as a mediator as long as he or she is able to be a neutral facilitator.
It’s been my experience that mediation conferences have a greater likelihood of success if I try to settle the case by direct negotiation with opposing counsel before the mediation. Attorneys have been settling cases without mediators for years, so give it a whirl. If you don’t attempt to settle on your own before the mediation session, the mediator will probably spend a significant amount of time determining the parties’ positions and defining a reasonable settlement range. This is wasted time that could be better spent homing in on a settlement.
Once the conference begins, ensure everyone is on the same page by sharing your premediation memorandum with the other side—just make certain they share theirs with you. If you have information for the mediator that you’d rather keep quiet, provide it in a confidential memorandum. But consider this: If known to the other side, would this information motivate the opposition to settle on your terms? If so, why, then, keep it secret?
The most important preparation for mediation is the time you spend with your client or the client representative. First, make sure that the client or client representative has the authority to evaluate and develop settlement proposals and enter into a settlement agreement. Then explain both sides of the case to the client and offer your assessment of the other side’s needs and interests. In preparing a client for mediation, I discuss candidly the risks of trying the case, the costs and attorneys’ fees necessary to take the case to trial, and the potential trial outcomes and consequences of those outcomes. Recognizing that there is a range of probable results in litigation and a totally separate reasonable range for possible settlements, I do not discuss with the client any specific amount that would be a “bottom line” position.
Mediation has been described as a poker game, so to “play” you need to be thinking several steps ahead. Give careful consideration to your opening offer because that can set the tone for the rest of the mediation conference. The opening offers should be within the credible range of possible settlement. It’s important to discuss with the client before the mediation the necessity of evaluating information and offers with an open mind and a willingness to be creative and think “outside the box” to structure a favorable settlement.
Finally, because a successful mediation always ends with a written agreement summarizing the settlement, preparing for mediation requires that you identify for your client all the essential subjects to be addressed in the ultimate settlement agreement. If you and your client enter into mediation with the intention of negotiating in good faith—and with careful preparation for the mediation process—the prospects for a successful resolution are greatly enhanced.
Lawrence R. Mills, a former sole practitioner, is a business lawyer, mediator, and arbitrator with Mills Meyers Swartling in Seattle, Washington. Contact him at email@example.com.