Knowing Your Case
While this suggestion may seem basic, it is critically important. Evaluate the strengths and weaknesses of your case sufficiently in advance of mediation to allow the analysis to be shared with your client and other decision makers. Prepare as if you were going to trial. Remember, also, all litigation has risk, so know the weaknesses or vulnerabilities in your case.
Knowing Your Client
Preparing your client for what the mediation process entails can be as important as a comprehensive understanding and evaluation of the facts and legal issues. Is your client familiar with the litigation process, and has the client previously participated in a mediation? Is your client a sophisticated client? Do you have an ongoing relationship with the client, or is this the first time you have worked together? Make sure to communicate with your client on the expected length of time for the mediation, and be aware of any time constraints the client may have, whether travel, child care, etc. On occasion, these types of issues will be unavoidable, so communicate in advance with the mediator or opposing counsel or both.
Explaining the Mediation Process and the Role of the Mediator
Explain to your client what mediation is, how a typical mediation process works, and the role of the mediator. The client should understand that the mediator is a neutral and will not rule or make a decision about the case as a judge or jury would do. Despite these limitations, the client should be prepared for the mediator to ask hard questions and probe the strengths and weaknesses of facts and legal arguments of the case, because this is a substantial part of the mediator’s role. Having candid discussions with a mediator is part of the mediation process, so make sure your client is not thrown off when these discussions occur. If the case resolves, it will likely be a day for compromise, not “winning.”
Explaining What Your Client Can Expect of You
There is (or should be) a difference in the presentation of a party’s case at mediation as compared with trial. The client needs to be prepared (and not surprised) when discussions with the mediator include an acknowledgement of challenges or risks with certain legal positions taken in the case or the chances of success on certain discovery or dispositive motions. It does not mean that you will not aggressively argue the same position in representing your client at a hearing or trial. Mediations should be a process for candid discussions.
Strategy for the Mediation
Clients may be adamant about their unwillingness to settle their dispute. Because mediation is likely court ordered, help your client understand the advantage of learning about the other side’s positions and theories, which is helpful should litigation continue.
Selection of a Mediator
Parties or counsel may be reluctant to use a mediator suggested by opposing counsel. This is a mistake. Unless prior experience with a mediator has been unsuccessful or another reason exists for not wanting to use that mediator, instead consider the advantages of selecting a name from a list proposed by opposing counsel who likely has confidence in that mediator. If you do not know the mediator, conduct due diligence to learn the mediator’s experience and style. Feel free to suggest other names and the reasons why you think a particular mediator would be helpful, whether based on similar experience, longevity as a mediator, gender, past results, etc. Resist being prejudiced by who proposed the mediator.
Informing Your Mediator
Educate your mediator in advance of mediation. It is helpful to provide a concise mediation statement with a candid assessment of strengths and weaknesses of your case, and if dispositive motions have been filed, a copy of the motions and responses should be attached. Also consider a call with the mediator in advance of the mediation to let him or her know about the dynamics that may be in play and concerns that may exist.
Virtual or In-Person Mediation
The majority of mediations are now being conducted in whole or in part on virtual platforms like Zoom. If the mediation is set on one of these platforms, make sure your client has sufficient space to conduct the mediation with privacy and has the appropriate equipment. Most mediators offer a complimentary test to ensure connectivity in advance of the mediation, which can often alleviate the stress of connecting to the platform for the mediation. If the mediation will be in person, make sure appropriate directions and parking information have been provided.
Confidentiality of the Process
Although the mediator will certainly explain the confidentiality of the mediation process, you should also reassure your client in advance that the mediation conference will remain confidential. Often one party will be reluctant to make a particular offer at mediation, reasoning that if the case does not settle, a higher number will be asked for at trial. An understanding of the inadmissibility of this confidential information should be stressed to the client.
Who Will Attend the Mediation
The ultimate decision makers should be present and participate in the mediation. While this is understood, those individuals are frequently not in attendance for a variety of reasons. If the designated representative will be giving periodic updates on the status of the negotiations, encourage that person to participate in the discussions with the mediator and counsel. Although a person with authority is required at mediation, there is a lot of room for interpretation in this regard. Avoid surprises at the mediation, as when a nonparty (e.g., spouse, son, or daughter) shows up and wants to participate in the mediation. This can and should be addressed well in advance of mediation.
As part of preparing for mediation, a key issue is often whether there is available insurance to cover a settlement and, if so, the limits and terms of the policy. Make sure you have read the policy and have a copy of it, together with any reservation of rights letters that may have been sent. Does the policy require approval of the insured, and what are the ramifications if the insured refuses to settle within policy limits? If the client is self-insured or there is no available insurance, is the party collectible? These practical issues need to be considered.
Joint Caucus and Opening Statements
Mediations generally start with a joint caucus where the mediator explains the process. The joint caucus may be followed by an opening presentation by the parties. There are strongly held points of view on whether having an opening statement helps or hurts. This is not a one-size-fits-all, so consider this carefully in determining the strategy for the mediation. Make sure your client is aware that an opening statement might be provided and that the client should listen and not react or comment. Emphasize that the client will have ample opportunities during the private caucus sessions to discuss anything said during the joint session.
Unrealistic Expectations and Opening Numbers
You and your client should discuss the negotiation process, and your discussion should include a realistic assessment of the value of the case and defenses or other issues that may affect a decision at trial. If you are representing the plaintiff, discuss a potential opening number in advance of mediation and the available damages based on the cause of actions pled or significant legal defenses that may have been raised. For example, if there is a $50,000 cap on damages but the suggestion is to start at a high six-figure number, or if a significant statute of limitations defense exists, these issues can raise unrealistic expectations that chill the process.
Brackets and Ongoing Negotiations
In preparing your client for the mediation process, explain the back-and-forth process so the client does not expect a single offer. If possible, know the adjuster’s or opposing counsel’s style of negotiation. The more information that can be obtained the better. Brackets can be an effective negotiation tool, but you will need to know if your opposing counsel (or the participating adjuster) is open to bracketing, and make sure to fully explain the function of brackets to your client, including the impact of the midpoint on any bracket that may be proposed.
If the parties have reached an agreement and you represent the defendant, having a draft settlement agreement available can make finalizing the settlement much easier and avoid later disputes over the terms of the release language. Alternatively, a short agreement should be drafted with the material terms and the signatures of all parties. Remember, if all parties do not sign a settlement agreement, it is generally deemed unenforceable. Do not leave mediation without an agreement containing all the material terms and signatures of the parties.
Impasse and Follow-Up
If your case does not settle at mediation, your mediator may call a couple days or weeks after the mediation conference to follow up and see if there are opportunities for continued settlement discussions. With rare exceptions, there are few parties that enjoy the litigation process and the uncertainty and expense of a trial with an unknown result. If there is a dispositive motion that must be heard and will have an impact on mediation, follow up with the mediator once a ruling on the motion has been made to explore additional settlement possibilities. It is not unusual for a case to settle weeks or months after an unsuccessful mediation.
In Sum: Heading Off Impediments to Settlement Before Your Mediation
There are many reasons cases fail to settle at mediation. Being prepared and selecting an experienced mediator will help ensure a successful mediation process, even if the matter does not settle at that time. Remember: (a) be prepared; (b) recognize the risks; (c) have the right people participate in the mediation; and (d) try to prevent unrealistic expectations. Communication is key. Your mediator is there to help you before, during, and after the mediation.