May 2005
Volume 1, Number 3
Table of Contents

Toward More Successful Mediation
By Brandy Carestia Cutting

Mediation presents parties with a unique opportunity to reach a final settlement of their claims, contrasted with the risk and uncertainty of further litigation, trial, and appeal. Our clients, who possess the most knowledge about their conflicts and have the greatest interest in resolving them, are best equipped to fashion a solution to their problems. Consequently, mutually acceptable resolutions crafted through mediation almost always result in higher client satisfaction than protracted litigation.

In addition to the sense of accomplishment derived from personally shaping the resolution of their claims, our clients also reap benefits of early settlement including avoiding additional expense, time, stress, and often disappointment on both sides that result after a verdict.

This unique opportunity for negotiated settlement is now mandatory in nearly all Montana jurisdictions prior to trial, and often prior to a trial setting, as well as in the appellate process. The following suggestions are intended to assist lawyers in making the mediation process more successful for their clients.

Prepare your clients

A client's expectations upon commencing mediation play a crucial role in the mediation process. We should explain to our clients that mediation is an informal, confidential, negotiation process involving a neutral third party mediator who will discuss the pertinent issues, facts, and law with the parties in an effort to promote resolution. We should also advise that the process requires time and effort and that negotiation involves compromise on both sides before a settlement can be attained.

To increase the likelihood of settling claims, it is most important, however, not to inflate our clients' expectations. Potential settlement should be considered in light of two important, though not always equally weighted, questions: (1) What is the likely jury verdict range if the case is tried?; and (2) What are the parties able to do today to resolve the case that could/will avoid the risks of proceeding?

Although jury verdicts are often difficult to predict, it is useful to pinpoint a likely verdict range to contemplate in analyzing settlement proposals. Most often, however, the second question, i.e. what is "doable today," is most instrumental in reaching resolution. What compromises the parties are or are not able to make and what are logical courses of action in light of all risks often dictate the settlement and may not be related to the estimated outcome at trial.

In light of these questions, it is imperative that the parties discuss the weaknesses, as well as strengths, of their cases with counsel, and further, that the parties are advised not to draw any firm lines with respect to settlement upon entering the mediation process. Because logical solutions are often revealed through the mediation process, our clients are best served when we remind them of the importance of keeping an open mind.

Be candid

Candid and objective discussion of needs, exposures, and risks in a confidential setting with the mediator increases the likelihood of a successful result. "Positional bargaining" by lawyers, which may include high demands or low offers, the use of threats and bluffs, and being secretive about true needs or exposures, slows the mediation process and makes ultimate resolution more difficult. Accurate information plays a critical role in whether the mediation process is ultimately successful.

Outcomes are more favorable when we are frank about not only the strengths of our cases, but the weaknesses as well. Lawyers, accustomed to acting as advocates for our clients, often present the "trial portrait" of the case to the mediator. Remember, winning at mediation is finding a solution to resolve conflict. It helps our clients favorably conclude their cases when we acknowledge the smudges in the portrait.

It is also beneficial to confidentially inform the mediator of any limiting practical considerations or any other unique circumstances that might influence the outcome of a case. Of *23 course, the mediator must have demonstrated his or her sincerity in fairly trying to bring the parties to a mutually acceptable resolution and must have earned their confidence through his or her conduct and efforts in order to have this important information shared. Confidentiality should be stressed and the mediator should not disclose any information to the other side without first obtaining authority to do so.

Make recommendations

Providing clients with recommendations during the mediation can be a powerful catalyst in settling claims.

Parties to litigation frequently feel helpless in the litigation process and dependent upon their lawyers, insurers, and ultimately an unfamiliar judge and jury. Mediation allows clients to meaningfully participate in the resolution of their claims. Clients gain a sense of empowerment from the knowledge that they are able to take control of the outcome of their cases and bring them to finality. Shaping an acceptable and permanent solution to their problems often results in a real sense of accomplishment.

At the same time, clients often depend upon counsel to assist them in making decisions. After all, a lawyer's most important role is to provide his or her clients with advice and guidance. Sometimes this includes assisting our clients in reaching a conclusion that is in their best interests but that may be difficult for them to embrace.

It is especially important to help guide clients who are unfamiliar with the litigation process or who might have strong opinions about their cases. A lawyer's recommendations, coupled with a mediator's skilled exploration of the issues and clarification of beneficial options, often results in the resolution of difficult cases.

Choose a skilled mediator

Although some cases will settle no matter what the mediator does and some cases will never settle no matter what the mediator does, many cases settle because of what the mediator does.

Some mediators assume a very passive role, allowing the parties to navigate their paths in the process. Others are more actively involved, using their knowledge, skill, and repertoire of techniques to guide both sides to resolution. If the parties appear to be at impasse, a mediator who is able to accurately assess and analyze the reason for impasse and use appropriate advanced mediation techniques may well put the mediation back on course.

Such advanced techniques may include a simple statistical analysis of risk, methods for saving face and addressing unmet interests, mediator proposals, and other creative techniques developed for the particular situation.

A mediator who is also adept at building rapport and putting participants at ease is preferable. A mediator's sincerity and ability to empathize pave the path to settlement.

Establishing trust and credibility among the parties and their representatives is key in the effectiveness of a mediator's techniques.

In some cases, a client's ability to identify with the mediator increases the client's trust in the mediator, which increases the mediator's ability to help the client. Sincere mediators proficient at building rapport, experienced in advanced techniques, and actively invested in the process will certainly increase the probability that the case will settle. It is this author's hope that the information discussed herein will assist lawyers in leading their clients to more successful resolution of their claims through mediation.

Brandy Carestia Cutting is an attorney-mediator at the Missoula office of Carestia & Cutting Alternative Dispute Resolution Services. She is admitted to both the Montana and California state bars and has litigated, negotiated, and settled claims in California and Montana for the past five years. She trained as a mediator in courses by the Attorney-Mediators Institute and Association for Conflict Resolution and has been involved in the mediation of approximately 200 claims in Montana over the past two years. She can be reached at (406) 543-1923.

Montana Lawyer; December, 2004/January, 2005
Copyright Copr. 2004 by State Bar of Montana; Brandy Carestia Cutting

Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.


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