Yes, there are the more complex cases with often tragic underlying facts: midair collisions; controlled flights into terrain, aircraft breakups in flight, structural failures, pilot error, and the thankfully rare mass aviation disaster. These cases typically involve serious injuries or fatalities. They also typically involve complex technical questions of causation and accident reconstruction. Although cases of this magnitude make up only a modest number of aviation cases percentage-wise, they are the most challenging, intense, expensive, and emotional part of the docket. So we will take the example of a mediation involving a serious aviation accident as the basis for our (far from) comprehensive checklist. Nonetheless, this five-item list may have some utility across a broader spectrum of cases.
Pre-Mediation Checklist
- Prepare your client
- Exchange mediation submissions
- Engage in pre-mediation teleconferences
- Prepare for openings
- Consider impressions
The five points on the checklist are explained below in what I’ll call “amplified procedures.”
1. Prepare Your Client
From the perspective of either plaintiff or defendant, mediation should never be a matter of just showing up. An experienced insurer or counsel may not need much preparation for the mediation process itself. Nonetheless, discussing strategy, settlement range, opening offers, and increments of increase is important. Anticipated strategy and demeanor of the opposition and positions taken in exchanged submissions are also topics worthy of pre-mediation discussion.
The plaintiff in an aviation case involving serious or fatal injuries has a more challenging task. As counsel, we take the bargaining and give-and-take of mediation for granted and generally have no objections to this process. The family of a lost loved one will not take to it as easily. Plaintiff’s counsel should prepare his or her client for what could be perceived as a calculating and dehumanizing process. Usually, the defense team will approach this process with sensitivity so as not to exacerbate tensions. Nonetheless, preparing an emotionally vulnerable client for the give-and-take quantification of the mediation process is extremely important. It may take some time even to get into dollars. Often, attending plaintiffs need to be heard, need to talk with the mediator, and need to acclimate to the process before they can transition to receiving and responding to settlement offers.
A first-time defendant may need similar preparation and hand-holding. Let’s take as an example an insured airframe and powerplant shop confident that repair and maintenance played no role in the accident. The owner is personally invested in the outcome of the mediation. He or she may view any settlement as tantamount to an admission of fault. Yet, the insurer may be the sole decision maker on settlement, and this can create tensions. These tensions should not await the mediation. Pre-mediation preparation and explanations for the uninitiated defendant might include explaining the dynamics of settlement, risk management, and that settlement is not legally an admission of anything, and clarifying the insurer’s role as the ultimate authority as to settlement. In my experience as counsel and mediator, this is not an issue about 95 percent of the time, but that remaining 5 percent can be a significant impediment to resolution.
For all sides, one of the most challenging aspects of mediation is agreeing what closely held facts and law you will share with the mediator and your adversary. As most of us were trained to litigate before we were trained, if at all, to mediate, we often approach mediation as a stepping-stone to trial. As a result, it is tempting to hold back critical evidence and arguments for later deployment. The information to be exchanged or held back is another important component of preparation with your client. I urge maximum disclosures, and if there is doubt whether to disclose, take advantage of confidential mediation caucuses to share information with the mediator and discuss how to use it effectively. It is not tautological to suggest that if you want your best mediation result, expect to play your best cards there.
2. Exchange Mediation Submissions
Mediation submissions are invaluable. They should be prepared as would an abbreviated trial brief, and I believe they should be exchanged between the parties. As mediator, I require simultaneously exchanged submissions and a separate settlement memorandum from each party for my eyes only.
The submissions serve several important purposes: (1) They prepare and inform the mediator; (2) they provide insights for each side into the position of the other; (3) they form a foundation for pre-mediation teleconferences; (4) they force all parties to prepare for the mediation by marshaling the law and the facts; and (5) they are useful tools for counsel and their clients to review together in preparation for the mediation.
When I receive two well-crafted mediation submissions that take productive, polite, deferential, and somewhat objective approaches, my optimism for the mediation increases. Far too often, at least one submission is little more than a hastily written letter with no records references and little or no legal authority. It was just something to meet a deadline. The team behind such a submission do themselves a disservice, as they have forfeited a critical opportunity to persuade the other side and to make a serious commitment to the mediation process.
As in so much in mediation, consider the message you are sending to both the parties and the mediator with the quality of your submission. The care and effort of your submission sends a clear message about how invested you are in the mediation process and a negotiated settlement. Your shared submission should address liability and damages and, if appropriate, should include comparative verdicts and settlements. Also, as in mediation generally, always consider your audience to be your adversary, not the mediator. Take a tone in your shared submission calculated to convince, not combat, your adversary. Almost always, this means something softer than a “take-no-prisoners” excoriation. Our goal is to persuade, not to punish, and certainly not to alienate.
3. Engage in Pre-Mediation Teleconferences
After you have followed your pre-mediation checklist through the submissions, pre-mediation communications are how the mediation process can gather momentum toward settlement.
Not all mediators engage in significant pre-mediation conferences with the parties. In my experience, they are invaluable. I typically conduct ex parte teleconferences with counsel only. However, there have been instances in which we have added or included party principals and insurers.
These conferences can accomplish a lot and should begin a week or two before the scheduled mediation and after the submissions are in hand. Items to address at these teleconferences include the status of negotiations, relations among counsel, client relations, and discovery status. Pre-mediation conferences also represent an opportunity for the mediator to develop rapport and trust with the parties.
When parties have the opportunity to speak in confidence with the mediator ex parte, the mediator can begin to gauge how close they are in their evaluations of the case. In my experience, the lawyers are often closer in their evaluations then they realize. Both parties have likely been cagey in their negotiations and made only modest moves toward a settlement. They also have probably conceded little to their adversary about the weaknesses and obstacles to their positions. Pre-mediation teleconferences can cut through a lot of this brinksmanship and help the mediator get a feel for the middle ground. Often new offers and demands are exchanged and the goalposts brought closer together in advance of the formal mediation “proper.”
Perhaps the most important question a mediator can ask at these conferences is the extent of any client control issues on either side. When there is disharmony, or simply a disconnect, between counsel and client, the mediator will be conducting more than one mediation. When this happens, counsel is, in effect, asking the mediator to persuade the client in addition to the adversary. Knowing about any client control issues is far more useful in advance of the mediation than it is at the mediation itself. The mediator may elect to include counsel and client in a later teleconference, and the mediator will certainly tailor his or her comments in caucus sessions differently knowing the differing views in the same room.
Although the mediator likely has no power to mandate discovery, discovery status and disputes often come up at these conferences. While mediators cannot order anything, they can suggest some items to prioritize. In an aviation case, volumes of aircraft maintenance records may be at issue, but a smaller subset of the records might be of particular interest. An informal agreement to produce this subset at a meaningful time before the mediation may reduce some of the variables and smooth the path to potential resolution.
4. Prepare for Openings
Note that this checklist item does not read “prepare your opening.” This is by design. First, I should note that I am an advocate of joint sessions and opening statements. But they must be geared toward facilitating a negotiated settlement. They are most decidedly not trial openings. Mediators sometimes shy away from opening statements for their potential to be divisive. Yet, the mediator has the capacity to guide the parties toward effective openings as part of the preparations above. Properly prepared and presented, these openings can be invaluable groundbreakers and indeed merit a longer article unto themselves.
The trial opening, calculated to lay out the evidence and showing a party’s entitlement to “win,” has little value in mediation. And because much of a trial opening is directed at the failings of the adverse party, it is a potentially divisive instrument if deployed similarly in mediation. Indeed, much of the rationale for disfavoring joint sessions and opening statements in mediation is rooted in the experience of having openings follow a trial model and thus go horribly wrong.
Winning is not the mediation paradigm. Instead, the mediation opening should be a tone-setter. It will not win the case or ensure a verdict, but a well-played opening can begin realigning the parties from an adversarial mode to a more cooperative posture. Remember, your target audience is not the mediator but the adversary. If your opening has the effect of hardening and entrenching your adversary, it has failed miserably as a mediation tool. Yes, my fellow defendants, your mediation opening is not the place to attack the character of a decedent or minimize the “value” of a lost life. Save such delicate subjects for the caucus sessions, and trust your mediator to relay such messages in a non-divisive manner at the right time.
The parties may indeed have different goals to achieve via an opening, and contrary to trial instincts, defense counsel may advance their cause by allowing some aspects of the plaintiff’s opening to go unanswered. A plaintiff’s emotionally charged personal injury aviation case is a prime example. That plaintiff may truly need a day-in-court experience, and a strong opening from counsel may be both validating and cathartic. A subdued and respectful response to a somewhat “robust” plaintiff’s opening may serve the greater purpose of advancing settlement. A defendant should attend the mediation prepared for such an opening and understanding the value of not responding in kind.
A solid core for a defense mediation opening is to politely note points of disagreement, present issues in a non-inflammatory way, and express your common interest of resolving the case, along with sincere regret for the circumstances that brought you here.
5. Consider Impressions
The final “amplified procedure” on my checklist is the least technical.
As you prepare for your mediation, remember that your ultimate audience is your adversary. Everything you do in the mediation should be calculated to bring your adversary closer to settlement. This calls for the classic carrot-and-stick approach, and you will have to decide the appropriate measure of each.
One approach that cannot fail is to demonstrate the highest standards of courtesy and professionalism throughout the mediation process. Your preparation can be your greatest asset, just as at trial—it is just geared differently. Consider, for example, the impact of demonstrative aids and animations in mediation, and they need not be controversial.
In a fairly complex technical mediation I participated in last year, the cause of a critical failure in an engine control unit was the central liability issue in the case. No party contested that the component had failed. We used an animation of the (uncontested) failure sequence to “explain to the mediator” what happened to the aircraft at the time of failure, how the electronics were sequenced, how the cockpit displays registered the failure, and the required corrective action. Our real agenda in commissioning and using this animation was to demonstrate to an adversary with very deep pockets that we took the claim seriously and would bring the necessary resources to bear to litigate it. It was all about the impression.
Demonstrative aids and the like can assist at the mediation and also send a message to your adversary as to your preparedness and dedication to your cause. Rules of evidence are not in play, and the mediator will almost always agree to view all the “evidence” you present.
As such aids are intended for use in the joint session, be mindful of the content. The family of a deceased passenger should not be forced to view photos of the smoking wreckage. The plaintiff may want to present photos and perhaps video of the person he or she lost. This is to be expected and is part of the mediation catharsis. A defendant may present animation derived from radar returns, etc., to show an aircraft’s decent profile and other aspects leading up to the accident. This shows the plaintiff, in a neutral and inoffensive way, that the defendant takes this case seriously and will be ready to defend it. Your astute “education” of the mediator can make critical and lasting impressions on your true audience—your adversary.
The impression made on the adversary is more important than the impression made on the mediator, even if this means remaining reasonable in the face of what you perceive to be an unreasonable position. In the end, the cooler head often does prevail.
In Closing
I hope this five-point checklist has some useful takeaways. As mediation becomes more and more the norm and as, at the time of this writing, trials are being delayed due to COVID-19, it is ever more important to take advantage of the settlement opportunity presented in mediation. Putting in the preparation and working with the mediator well ahead of the mediation can, in this author’s opinion, yield rich dividends when you sit down at that big table or “join” that Zoom meeting.
