A Litigator’s Reluctant Endorsement of Mediation

Vol. 32 No. 1

By

Kathleen Balthrop Havener is the founder and managing member of The Havener Law Firm LLC in Cleveland, Ohio. She focuses on commercial litigation in Ohio and across the country.

Let’s get my confession out of the way: I am not a devotee of mediation. They don’t call them “mediators” for nothing. When I’m approaching mediation, I do so convinced that the mediator wants to reach the “middle”—but I don’t want the middle. Ever. I want the right result. A proposal to mediate will never come from me. There’s one exception: I love the kind of mediation that the trial court conducts at a final pre-trial.

One of the reasons I don’t particularly like mediation is that an awful lot of it seems to be no more than one effort at unpleasant gamesmanship after another. The parties and attorneys size each other up, shake each other up, force each other to reconsider their respective positions. One is bound to hear—regardless of the format—that opposing counsel has presented to the mediator positions that are outrageous and dismissive of one’s own position. Mediation too often involves deceit, denial, and disingenuous conduct that feels almost dirty. I always feel the ghost of Machiavelli hovering over the shoulder of the opposing side. Mediation tempts one not only to distrust one’s colleagues but to actively dislike them.

The mediator may criticize the court system, saying out loud what we all know, that juries don’t often understand the intricacies of one’s position and almost never understand damages, and that going to court is a huge risk. In general, I suppose mediation challenges my view that lawyers have a duty to maintain straightforward and reasonable behavior and to believe in America’s jury system. I’d rather hear a vote of confidence in the “system” from a mediator along with a plug for mediation because of all the advantages it can have.

With that out of the way, I acknowledge that I’ve mediated a lot of cases. From a high-stakes securities fraud case that had been ongoing for ten years (in which our client had won summary judgment twice and the trial court’s grant of summary judgment was reversed twice by the appellate court) before the parties finally agreed to mediate and successfully resolved the matter, to a commercial landlord-tenant dispute, and many in between. And, I also must confess that, more often than not, mediation works.

Why Mediation Works

It’s not hard to understand why it works. First, you have the opportunity to lay out your case in a mediation statement—that is, to fully lay out the story you want to tell, in a format that is somewhat less rigid than a brief. I cannot emphasize enough that your mediation statement must be highly readable, engaging, and comprehensive. If the mediator is to be properly prepared, your mediation statement is your chance to explain in plain English why your client’s position is the right one.

Another reason mediation works is that you and your client have the opportunity to tell your story directly to the mediator, to be heard, and to recognize that you have been understood. You also hear the points the other side makes to the mediator that have “moved the needle.” A good mediator won’t mention to you and your client the points the other side made that didn’t sway her. Instead, she will focus (during the time she spends with you) on the points that the other side made that she believes should give you pause and possibly cause you to reconsider a particular position. Better yet, if the other side makes a statement about some aspect of the case that you can easily disprove, you have the opportunity to immediately correct the mediator’s understanding.

Mediation empowers clients. They have the opportunity to decide for themselves how—or whether—they want to resolve the situation. Rather than awaiting a decision handed down from a court, their participation in mediation allows them to make their own decision and to assess the good faith and reasonableness of the opponent. The risk of a trial can be avoided—or not—based on what the client hears and sees during a mediation. In mediation, the client is the decision maker.

Mediation is also (usually) confidential. Whereas anything that is said or written to a court of law is public record, if the agreement to mediate is properly crafted, mediation can be absolutely confidential. Obviously, sometimes comments are made that one would give almost anything to repeat (especially to the court), but the participants must remain mum about anything that has been said during a mediation. Knowing that one’s comments can’t be repeated later has a freeing effect on what one may disclose in mediation and provides an outlet for the frustration that eventually arises during mediation.

Mediation has the additional benefit of speed. Instead of waiting for the case to run its course, or even for an arbitration panel to reach its decision, one may choose mediation (or it may be ordered by the court) in order to arrive at a satisfactory outcome sooner. With speed comes economy—the time and money invested in preparing for and participating in a mediation will almost certainly be far less than what would be spent in preparing for trial. On the other hand, I would never engage in mediation if I didn’t feel that—jury instructions and motions in limine and the buildup to trial aside—I am 100 percent ready to try the case. I refuse to be surprised in mediation. Thou shalt not play “Gotcha”—for I simply won’t participate. I know the facts and the evidence I need to prove them. It is no small satisfaction to hear the mediator say, in your client’s presence, that she has conveyed to the other side that she’s impressed with how ready you are to try the case.

Preparing for Mediation

Preparation in mediation comes with a twist. Your presentation, manner, and sense of decorum in mediation should be directed toward your adversary. You must be able to say—within your first presentation to the mediator, opposing counsel, and her client, without flinching or an ounce of discomfort—what the opposing party has done wrong, why the conduct was wrong, and to convey your own outrage (for you will feel it) calmly, forcefully, and authentically, without evidencing one iota of scorn or even disapproval. You may be hard-pressed to rein in your temper, especially if the opposing party (not counsel) has not been appropriately prepared for the mediation and behaves dismissively toward you.

Preparing your client (or client representative) for mediation is a peculiar enterprise, especially if you have prepared him appropriately for depositions. You must explain the different purpose of mediation as opposed to deposition. Your prior instruction to “say no more than you must” has to be discarded. Your client needs to understand the difference between his conduct in a general session versus conduct during caucuses with the mediator. In the first (in my view) your client must remain stoic, and it works better if the lawyers do all the talking. In the second setting—in caucus with the mediator—your client has the opportunity for the first time in the entire formal proceeding to freely tell the story of the case from his perspective and how he has been harmed. From the advocate’s perspective, especially if your client has been educated appropriately during the course of the case about the elements of each of his claims and the available defenses, it is a rewarding moment.

I prepare a client for mediation by (1) taking every fact I am confident we can get into evidence or that the other side will try to; (2) charting for (and with) my client—some people call it whiteboarding—how each of the facts works to his favor in terms of legal argument for an element of the claim or against him in terms of the opponent’s available defenses. Then my client writes out what he intends to say to the mediator. We go over that together. I am a fierce and unabashed critic (as he understands), trying to push upward and turn him toward relating the best facts that support our legal arguments and the best facts that support our arguments against our opponent. Without notes. He knows his story. It isn’t hard to help him learn how to tell it.

You may be scratching your head. “Why?” you are asking. If you happen to be one of those lawyers (along with me) who believes that the better educated your client is about the law that governs his case, the better your chances of winning, you will understand immediately. It’s an easy answer. You want your client to feel empowered. You want your client to feel understood. And—if you are like me—you want the right result under the law. Because, except in the mediation statement and few and far between opportunities during the mediation, you as the advocate might try to argue the law, but, I assure you, the mediator is uninterested.

I’m about to make a proclamation I’ve never heard or read about before: You want your client to understand the law. More importantly, immeasurably so, you want your client to know that the law is in his favor. And you want him to hold his own in an argument with the mediator or the opposition. The aims of this client-focused approach to mediation are manifold:

  • Your client will likely finally understand that—no matter how much you have tried to convince him otherwise in the past—his feelings of having been wronged are based in reality and his view of justice is entirely appropriate;
  • Your client is already familiar enough—based on the time you have spent, the issues you have raised, and the questions you have answered all along the way as he asked them—with the legal “hooks” that will win or lose your case and how they should be explicated;
  • You have not been a simpleton when, in previous dealings with your opponent, you let certain issues slide and concentrated instead on other issues that may have seemed (at the time) unimportant to your position; and
  • You (and now your client) are several steps ahead of the game.

And now your own role at the actual mediation is deliberately curtailed. Because your client understands the legal ramifications of every piece of evidence in your case, your own role is now—on the one hand—demonstrating to the mediator how the other side is (1) wrong; (2) fabricating; (3) deliberately lying; or (4) applying an incorrect interpretation of the law to the facts. On the other hand, you are your client’s counselor, advocate, and coach.

A Mediation Success Story

Recently one of my cases went through a mediation with a paid mediator for whom I have enormous respect. I represented the plaintiff, who had truly been wronged, and there were two opposing parties. The mediator expressed to our side during the day: (1) “I don’t think your opponents have understood your case until today;” (2) “I believe your opponents underestimate you” [meaning me personally]; and (3) “I told the other side you are far more prepared than they are for trial.” After a $3,000 investment from my client, we ended the day still leagues apart.

Was it worthwhile? In every way. Exactly 12 days later we attended the final pre-trial with the judge. As her rulings on the pre-trial motions began to be announced from the bench, those on the other side of the room began to squirm. By the time those rulings were finished, the other side asked to go off the record. The judge agreed. “Your Honor,” said one of the four lawyers arrayed against me, “would you consider conducting a mediation yourself?”

“Sure,” she said, “but I know you’ve already been through one. I don’t know what I can do to help that [the paid mediator] could not. But I will do this only if you’re prepared to do it now, and I only have until two o’clock.” (It was then about eleven o’clock in the morning.) There was wailing and gnashing of teeth on the other side of the room when I said, “The plaintiff is prepared to go forward immediately, Your Honor.” The defendants asked for three days to prepare. The judge said, “I’m sorry, counsel, but this is Wednesday. This case is set for Monday, five days away, how will you ever be prepared?” I sneezed to cover my reaction.

The judge took the case by the horns that day, and before we got anywhere near two o’clock, she had wrestled the defendants into a respectable offer. I heard her when she left us and went to the defendants with our final proposal. She was shaking her head as she said, “I don’t know how to get through to you gentlemen, but Ms. Havener is desperate to try this case and her client is inclined to let her.”

They matched our offer immediately and the job was done. As I said in the very first paragraph: I love the kind of mediation that the trial court conducts at a final pre-trial. I am still no devotee of mediation in general, but I know that any kind of mediation pushes the case forward, limits the issues, and serves as a reality check for everyone involved. I will never suggest it—but I always welcome it. And, usually, it works.

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