Effective Mediation of High-Value Cases
Parties who participate in complex, high-value, and/or multiparty mediation invest an enormous amount of time, money, and emotion. Most parties are looking for closure at such mediations. The key ingredient to more effective and productive mediations is premediation design and preparation. The parties should make sure that each side has the data necessary for a comprehensive evaluation and that the necessary decision makers participate in the case evaluation. Likewise, these decision makers should be at the mediation. Parties should prepare for mediation, employing the same forethought and planning as in preparing for trial. Since most cases settle, it behooves all parties to schedule the mediation date after they have gathered sufficient data for a comprehensive case evaluation but while there is still an opportunity for transactional cost savings. In multiparty cases, parties may consider a premediation caucus with the mediator well in advance of the mediation. Parties might also discuss with the mediator whether they want a general session at the beginning of the mediation and, if so, how it would be conducted. Opening statements, which should focus on the case’s key issues, can serve an important, positive purpose, but they can also be polarizing. On occasion, I have asked a party to argue his or her opponent’s case. Similar to trial preparation, checklists are important for mediation preparation. The following checklists provide guidance on the issues parties must consider before the mediation commences.
A Checklist for All Parties
1. Counsel should consider the usefulness of meeting with the mediator to specifically design the mediation process to fit the case.
2. Counsel should consider the usefulness of a premediation caucus or a premediation site visit with the mediator.
3. All parties should timely provide opposing parties and the mediator with all the information necessary to educate and to persuade them.
4. Counsel and the mediator should determine who needs to be present at the mediation to educate, to persuade, and to close the case.
5. All parties may consider creating a premediation settlement bracket.
6. Counsel should provide the mediator with significant motions, briefs, orders, photographic charts, graphs, etc.
7. Counsel should review with their clients before the mediation their best and worst case and the likely outcome range.
8. In commercial cases, all parties should assess the financial status of their opponents.
Plaintiffs Counsel’s Checklist
1. Prepare clients for mediation in the same manner as in preparing clients for trial.
2. Provide the defendants and the mediator with any economic loss projections and life care plans well in advance.
3. Have complete and accurate subrogation and lien information and have subrogation and lien claimants at the mediation or available by telephone.
4. Consider making a demand before the mediation. As a general rule, the greater the demand, the earlier it should be made.
5. Depending on the value of the case, consider providing the defense team with a demand letter, a settlement brochure, a settlement DVD, or a PowerPoint settlement brochure.
6. Obtain insurance coverage information before the mediation and determine how it affects your negotiations strategy.
7. In multiparty cases, plaintiffs counsel may have to negotiate as a unit and devise a mechanism in advance of the mediation for dividing any settlement.
Defense Counsel’s Checklist
1. Consider how acknowledgement and apology will be handled.
2. Give independent medical evaluations to the plaintiff and the mediator.
3. Put excess insurance carriers on notice before the mediation to allow for their meaningful participation in the process.
4. In multiparty cases, defense counsel and their clients may need to have a premediation caucus with the mediator to discuss the defense settlement strategy.
Parties to a mediation should keep in mind that, first and foremost, they must treat each other with dignity and respect. Parties should control anger and frustrations, and be gracious with one another. A fair mediation “process” is important for a positive outcome. Parties should be prepared to address underlying interests, needs, motivations, and emotions. Although sometimes difficult to accomplish, a mediation process built on trust and respect is geared to achieve one ultimate goal—to reach closure—and the process must be respected even if it differs from the usual adversarial approach. Opening presentations must focus on the key issues in the dispute and should be as objective and candid as possible. The opposing party (or parties) must be prepared to listen and shed its partisan perspectives during such presentations, just as it should throughout the entire process. Parties need to remain reasonably flexible, reconsider their positions, and reflect on new information and different perspectives as they wend their way through the mediation. Only if they show such traits and abilities will they be able to be creative and to connect with the opposing decision maker in order to break impasses. A few tactical and practical considerations: All parties should consider how they can create credible fear in their opponent(s). They should measure their own and their opponent’s risk tolerance and consider how they can create trust with the other party and with the mediator. Parties must find a way to understand and appreciate the emotions in play on both sides of the mediation table. Finally, all participants to a mediation should be prepared to build a golden bridge over which their opponent(s) can retreat, allowing them to save face. Remember that the goal is closure, not vanquishing the enemy.
Plaintiffs Counsel’s Checklist
1. If possible, let the client “sell” the case.
2. Present oneself as prepared for trial and confident of the ability to produce at trial.
3. Focus on the opposing decision maker(s), but don’t lose sight of the opposing gate keeper.
4. Determine what aspects of the client’s case are best “sold.”
5. Have a strategy for utilizing a punitive damage claim, if any, at mediation.
Defense Counsel’s Checklist
1. Acknowledge the severity of the plaintiff’s injury and, where appropriate, sincerely apologize.
2. In multiparty cases, be more concerned with each defendant’s own risk assessment and the overall case evaluation than the percentage split among codefendants.
3. Consider the plaintiff’s need to have a day in court, to be heard, and to have a sense that justice has been served via mediation.
4. Measure the plaintiff’s desire for closure and finality and appeal to those feelings.
Mediation of high-value cases requires thoughtful preparation, exquisite patience, creativity, legal and emotional insight, energy, and even courage. Parties need to understand both interpersonal and intrapersonal issues that arise in mediation: Don’t shy away from using both intuition and imagination. Flexibility and awareness of partisan perception, when combined with effective persuasive techniques, are tools necessary for advocates to employ to be effective in high-value mediation.
Joe Epstein is a principal with Conflict Resolution Services in Greenwood Village, Colorado. He has mediated more than 3,000 cases in a nationwide practice and is secretary-treasurer of the International Academy of Mediators. This article was adopted from one first appearing in Trial Talk, August-September 2004, at 33. He can be reached at email@example.com.
Originally published in TortSource, Vol. 9, No. 2, Winter 2007. Copyright © 2007 by the American Bar Association. Reprinted with permission.
© Copyright 2008, American Bar Association.