Mediation is a popular alternative for clients who are concerned about exposure and the rising cost of litigation. Studies vary, but most agree that more than 90 percent of all litigations settle. Many do so with the assistance of a third party, such as a mediator. Based on these statistics, it is understood that litigators will spend many more hours in mediation than they will at trial. However, attorneys do not always prepare for mediations with the same diligence and strategic analysis as they would for trial.
Part of this may stem from the fact that while there are many different accepted styles employed by trial lawyers, attorneys in mediations sometimes adopt the same posture. Some people even equate success in mediation with adopting characteristics that are traditionally considered aggressive, such as bluffing, threatening to walk out, or bullying.
Attorneys should make the most of mediation. It can be an extremely effective way to meet client goals with a more nuanced approach. Like many other litigation tasks, it can (and should) be handled with methodical analysis and preparation. Here are some tips for how attorneys can maximize their negotiation skills at mediation and increase the likelihood of a good result.
Even though attorneys are significantly more likely to attend mediation than trial, undertake sufficient preparations preparation for mediation. Some attorneys view mediation as an informal process and believe they can just show up and hear the other side out—shooting from the hip in response to offers and demands. Even if this is an appropriate negotiation tactic for the mediation, attorneys may find themselves at a disadvantage if they have not adequately prepared.
Experienced attorneys may spend two to three full days preparing for a single-day mediation. Preparing means being up to speed on the case itself—the facts, the procedural history, and the coming deadlines—as well as preparing to build up one’s armor. Practitioners should know the weaknesses of their case and should prepare their responses for when the other side raises those weaknesses. Many of these are predictable. When the opposing party takes a position on settlement based on a weakness in your case, it can go a long way to anticipate that issue and be prepared with a strong, well thought out response that is supported by the evidence.
Develop a Strategy
As noted above, it is a mistake for attorneys not to do their due diligence to prepare for mediation. Part of this is to develop a strategy and adopt a clear plan. What are the goals of the mediation: settlement at any cost? A walk-away? A defined amount of damages?
Some attorneys will prepare a decision tree to use as a guidepost for the mediation. Define the other side’s pressure points. Decide whether it is beneficial to have the parties meet together or offer opening statements. Give some thought to who should make the first move at the mediation. Should you make an opening offer or wait? Each mediation is unique. An attorney who “always” handles mediations the same way may not be maximizing her results.
Mediation strategy also can focus on nonmerits issues that may impact settlement or valuation. Consider the personalities of the other parties and attorneys. Will attorneys feel an impetus to “perform” in front of their clients? Are there concerns external to the mediation—such as adverse publicity, concurrent litigation, or financial pressures—that may be relevant? After identifying these issues, attorneys can strategize about how best to use or minimize those pressures to reach their ultimate goals.
Practitioners also are well served by giving some thought to the theme of their presentation and the tone they want to set at mediation. A precise and unified theme can be revisited throughout the day and conveyed to the mediator in a digestible manner.
When dealing with bullying conduct, consider how to take charge of the room in the face of the bully: for example, by speaking calmly, demurring their accusations, and refocusing on the issue at hand. It may be that there is some truth in the opposing side’s accusation if there have been adverse orders or discovery disputes, but reclaiming and maintaining power often involves remaining calm and direct in the face of a blustery storm.
It can be easy to get caught up in an opposing party’s rhetoric or aggression, but that rarely serves client goals (or reflects well on the attorney). Rather, by using their demeanor and opening remarks to set the tone, attorneys can begin to shape the course of the mediation from the first moments. Taking command of the room does not require an attorney to be the loudest, the angriest, or the rudest.
The mediation room is not a place for playing poker. Although attorneys are well skilled in spin, it can be quite detrimental to the overall process for attorneys to bluff. Experienced practitioners typically state that they will never threaten a course of action—whether to terminate the mediation or file suit or something else—unless they fully intend to follow through.
This does not mean that every participant has to be open and candid at all times about their goals, their bottom line, or their internal monologue. It also does not mean that parties are stuck with their positions and cannot adapt or respond to developments in the room. Rather, this reflects that the mediation room requires trust and belief in each party’s good faith.
A party who threatens to storm out with no intention to do so, or who fibs about whether he or she is willing to pay money, decreases the level of trust in the room, increases the parties’ hostility toward one another, and diminishes the likelihood of a settlement. Many experienced practitioners view such bluffing as amateurish and may not take their opponent as seriously thereafter.
Rely on Your Mediator
Perhaps the most important premediation task is selecting a good mediator. Strong mediators are those who try to get to the right answer in light of all factors and evaluate the issues candidly. Mediators who are compelled to push a settlement at any cost, regardless of the merits or other external factors, may create more frustration for the parties. The stereotypical used car salesperson approach (“What do I have to do to get you fine people in a car this afternoon?”) often results in dissatisfied clients and attorneys.
Mediation is an excellent opportunity to determine the true value of a case in light of all relevant factors. In identifying a mediator, attorneys can determine how they want to use the mediator. Will you tell your mediator your bottom line? Will it be the mediator’s job to push all parties to consider their weaknesses and potential exposure?
The best mediator is one on whom you can rely and who is truly neutral. The attorney can decide how candid to be with the mediator, but it behooves the attorney to be direct with the mediator when the attorney decides to share. A mediator who feels you have misrepresented the facts (or, per the above, believes you have been untruthful about your goals) may be less likely to support your efforts or side with you on disputed issues.
Mediation does not always get the respect it deserves as an alternative to trial. Further, when practitioners do not take the proper steps to prepare, mediation can be a powder keg of posturing, insults, and storm outs. Such demonstrations are rarely productive or effective. However, by considering the ultimate goals and putting in the legwork, attorneys can use mediation to stand out among other practitioners.
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