Some mediation sessions that have reached an impasse might not have done so with better mediation preparation, wrote David W. Henry, a partner at Alvarez Sambol & Winthrop PA, in a recent Business Law Today article.
“Mediation preparation is a meaningful and also billable activity that is too often ignored,” Henry said.
He offers this advice on how to set up mediation to achieve the best chance for settlement.
Create Your Own Mediation Countdown
The key is to begin thinking in stages, with each of the steps outlined below tied to a date prior to the mediation.
When selecting a date for mediation, leave enough time after mediation to deal with unexpected twists and turns if the case does not settle. Many attorneys “find themselves mediating on the eve of trial, when there is little opportunity to react to new information or positions,” Henry said.
Do not set mediation at the very end of the discovery period. In a well-managed mediation, you almost always learn more about your case and the opposing position.
Select the Mediator
While a magistrate judge conducting mediation is expected to keep discussions confidential, there is still some risk to the client in mediating with a magistrate. For example, if the magistrate is also making the pretrial rulings, the client’s settlement position or an offhand comment by someone may annoy the magistrate. With private mediators, there is no risk of offending the court in the mediation session.
“The dynamics of the process suggest that private mediators are preferable,” Henry said. “And after the formal mediation conference has ended, a private mediator can bird-dog continued discussions in a way a magistrate cannot.”
Henry said he almost always defers to opposing counsel’s choice of mediator, regardless of what side he is on. “If I insist upon a mediator that the other side distrusts for any reason, the intellectual underpinning of the process is threatened,” he said. “The mediator must be perceived as neutral or favorable by the other side to be the best communicator of your message.”
Identify the ‘Right’ Participants
If you represent a corporation or other entity, the day-to-day representative for litigation purposes is not always the best representative for mediation. Does he or she really speak for the collective will of the company? Has he or she made a poor decision to litigate and is now hesitant to cut his or her losses for fear of repercussions by superiors? If so, you will need to diplomatically cut through to management while preserving your relationship with the day-to-day litigation representative. If you bring someone to mediation who cannot sell a settlement to the company, or refuses to do so, you will have done yourself and the client a huge disservice.
Think about who should be present. Politely insist that key decision-makers participate in person. Learning one week before mediation that your mediation representative is someone different than you planned is potentially ruinous on several levels. Tell any reluctant senior manager that while the day-to-day litigation activity can be delegated, settlement decisions demand his or her personal attention and that only with that participation are creative solutions possible.
Assess the Interpersonal Dynamics Ahead of Time
In emotionally charged cases where there is great animosity between the parties or counsel, consider whether the parties should convene in a joint operating session. In rare cases, you may wish to dispense with a joint session, but only if the parties cannot be trusted to behave. Yelling and shouting should never occur, but sometimes lawyers lack the ability to control their clients.
Think about the interpersonal dynamics before walking into the mediation. Talk to the mediator, who can explore the issue on your behalf. Some unpleasantness and hesitancy to meet the opponent is expected. Push past that. Face-to-face encounters are only a concern if there is a real and legitimate risk that the process will be derailed. Some dislike, resentment or hostility is common and not to be avoided. Clients should feel some discomfort. This is a feeling that promotes settlement.
Don’t Confuse Business Savvy With Risk-Assessment Capability
After the representative is chosen, you must begin an aggressive period of education 60 to 90 days or more before the mediation session. The ramp-up time is proportional to the complexity of the case and the exposure presented. Educate the client on the case, the exposure, the parties likely to appear and the potential range of demands. Do this in writing.
If you wait until the week before mediation to give a report, there may be a host of problems. You may have settlement authority issues because the projected settlement is greater than anticipated and senior management must therefore be consulted. There may be external or internal business considerations posed by a settlement that you as an attorney have not considered (e.g., how would an injunction as part of settlement affect distributors and customers?). This can lead to numerous questions and a client-education process you will not have time to complete. Get your pre-suit mediation summary with potential mediation outcomes into the client’s hands 30 days or more before the mediation conference.
Expectations may be unrealistic for any number of reasons. Make sure that you start managing expectations early in the process and that your reporting is consistent with the expectations you have outlined.
“Some clients confuse their own personal success or expert knowledge with their ability to evaluate their case,” Henry said. “Do not let the client’s optimistic perception of the case color your independent evaluation. If the client has been harboring wild ideas that are unrealistic, it is better to air the perceptions or misperceptions several weeks prior to mediation, as opposed to a few days beforehand.”
For more tips on mediation, see the full article from Business Law Today. Additional resources are available at the ABA Dispute Resolution Committee’s website, and be sure to check out the committee’s podcasts. Business Law Today is a publication of the ABA Business Law Section.