Although I first served as a mediator seventeen years ago when I mediated the resolution of Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) after remand from the United States Supreme Court, I have recently begun to devote more time and attention to serving as a mediator. In truth, this recent emphasis is a product of my dissatisfaction and frustration with many aspects of litigation. However, that is a topic for another day. Suffice to say, despite trying a host of employment discrimination jury trials, I am now a strong believer in alternative dispute resolution.
I think most litigators agree that one of the most difficult categories of cases to successfully resolve by mediation is pre-litigation disputes or cases that are very early in the litigation process. I will simply call both categories pre-litigation disputes. This article will offer a few thoughts and ideas to increase the probability of successfully resolving such disputes. My first thought applies for all types of mediations and it concerns the selection of mediator. Many lawyers focus on a mediator that they have had success with or that they believe may give them an “edge” in the mediation process. I think this is the wrong approach. Great litigators put themselves in the shoes of their opponents and try to anticipate what the other side will do and what techniques the opposition will employ. The same analysis should be used for mediator selection. The correct focus should be on the type of mediator that will be best equipped to successfully interact with the individuals that will accompany you to the mediation and, equally importantly, the personalities of the other side. Do the parties and the opposing lawyer need a more facilitative approach, a strong evaluative method or a combination of the two approaches? Is a mediator with a big personality necessary? Simply going through the exercise of focusing on the needs of your client and the other side will enhance mediator selection and increase the probability of a successful resolution.
If you believe that you can simply show up at a pre-litigation mediation with a strong case or defense and you will be able to will the other side to a settlement, you should probably be prepared for disappointment. Normally, this approach does not result in resolution. How do you increase the chances of settlement? The most common mistake I see in pre-litigation mediations is that not enough communication has occurred between opposing lawyers. I am sure that every reader of this article has prepared a confidential mediation position statement for the mediator. As a matter of course, these statements are generally not shared with the other side. In a dispute that has been well-developed in litigation, this approach is perfectly acceptable. However, in a pre-litigation dispute, this standard approach can often be a mistake. Each side should provide their mediation statement to other side (not precluding additional confidential communication with the mediator). This will avoid the situation I often see where one side has simply not considered a particular legal argument or factual scenario. They arrive at mediation and learn of the legal argument or factual situation for the first time and the lawyer, the party or both are not prepared to address the argument or scenario. It is simply unrealistic to think that the other side is going to completely reconsider their evaluation of the case in such a setting for the first time. Exchanging detailed and thorough meditation statements affords each party with the opportunity to consider factual and legal arguments before the mediation. I also believe that in many pre-litigation disputes it makes sense to exchange key documentary evidence before the mediation. After all, these documents will have to be eventually provided to the other side as a part of discovery in litigation.
Despite its challenges, particularly for the mediator, I am a strong advocate for pre-litigation mediation. In many situations, the emotions are not as raw and although they may not admit it to the mediator or the other side, most lawyers and their clients learn through the mediation process the tremendous benefits of resolving a dispute without ever entering the courthouse. Often, even the early stages of litigation can involve material cost or irretrievable entrenchment of the parties, which is a difficult, often impossible, “bell to unring” and one that is so many times, unnecessary.