Mediators Take Sides: Do's and Don'ts from Top Mediators

Exchange mediation briefs. Many lawyers produce confidential mediation briefs to the mediator but do not share their mediation briefs with opposing counsel. This can result in a situation where one or both parties have a deficit of knowledge regarding the relevant facts or law. Lawyers seeking to share truly confidential information with the mediator might instead consider producing any private information with the mediator in a side letter, while exchanging mediation briefs with their opponent. This way, all parties are working with the same facts and law, and any “knowledge deficits” can be addressed before the mediation.

Exchange at least one demand and one offer before mediation. Waiting to begin negotiations until the parties and their lawyers are at the mediator’s office slows down the process. Instead, the parties should consider exchanging one round of negotiations before the mediation. Even if the numbers are far apart, the exchange of a demand and an offer, as well as the parties’ responses, provides an initial bracket to assist the parties with their negotiation efforts during mediation.

Have a pre-mediation telephone conference with the mediator. Counsel should schedule a pre-mediation phone conference with the mediator, one to two weeks before the mediation. It is helpful if the mediator conducts separate conferences with both sides. That way, counsel can openly discuss any concerns they may have going into the mediation, including any anticipated roadblocks to settlement. If your mediator does not typically schedule these types of calls, you should consider initiating such a call yourself and encourage the mediator to have a similar call with opposing counsel. Pre-mediation phone conferences can be a treasure trove of information for the mediator, and they may allow the mediator to begin planning a strategy for anticipated trouble spots so the mediation has a greater chance of success.

Use the mediator as a resource. Mediators often have significant litigation and trial experience, and they have facilitated and resolved numerous disputes in a wide variety of circumstances. Counsel should tap into their wealth of knowledge and consider asking the mediator what she or he thinks about the merits of the case, the effect of specific evidence, and the like. These kinds of discussions can help counsel to understand how the opposing party might be viewing information. Counsel can use such information to adjust their client’s settlement expectations and to plan a strategy for mediation.

Request early mediation if warranted. Many disputes require a time period for exchange of factual information before the disputes are ready for mediation. Some disputes, however, can be resolved early. This can happen where similar disputes have already been resolved and therefore the development of facts is largely complete, or where the parties are highly motivated to resolve their dispute due to personal or business relationships. Early mediation is also beneficial where the cost of litigation will quickly exceed the value of the claim. In such cases, do pursue early mediation and strike while the iron is hot.

Don't write insulting, aggressive mediation briefs. Most professionals will agree that exchanging insults is not a good way to begin any dispute-resolution process. Nevertheless, the mediators surveyed for this article reported that this is a common problem in mediation that slows down resolution significantly. Insults and aggression do nothing more than polarize the parties at a time when, ostensibly, they are seeking to find common ground. Thus, you should leave out the insults and stick to the facts. Occasionally, however, there are situations where one side or the other needs to air grievances before they are ready to settle. If that is the case, be sure to let the mediator know this in advance and work with the mediator to identify an appropriate way to handle such grievances.

Don't engage in surprise negotiations. If you truly want your client’s case to resolve at mediation, then save the surprises. It is not a good idea to wait until the mediation session to make a dramatically higher demand, or dramatically lower offer, without any advance notice to opposing counsel. For example, don’t wait until mediation to demand $1 million to settle if your client’s most recent demand before mediation was less than $200,000. At the very least, advise opposing counsel of your new demand before the mediation––including your underlying reasons for the change––so your opponent has time to process this information. Similarly, if money offered pre-litigation is no longer on the table, be sure to inform opposing counsel of that important fact before sitting down at mediation. Given that the parties, in some sense, are beginning the mediation farther apart than they had been before, even with pre-mediation warnings regarding changed numbers, the mediator will still have to work harder to resolve the dispute. Always be prepared to justify your new offer or demand with back-up information and supporting calculations.

Don't reject a proposed mediator because you are not familiar with her or him. Some counsel are reluctant to mediate before someone they have never used before. Instead of rejecting a proposed, unknown mediator out of hand, do some homework. Ask around. Contact colleagues, judges, local bar committees, and even national bar groups to find trusted opinions about mediators you have not worked with before. Counsel can also consider interviewing proposed mediators via phone to get a sense of whether there is a good fit. The benefit of agreeing to a mediator whom opposing counsel proposes is that the other side presumably has confidence in that person’s ability to resolve cases. And remember, if counsel take the position that they will not try someone new, mediators more recently entering the field, including women mediators, will have a tough time growing their practices.

Don't say “take it or leave it” unless you mean it. Say what you mean, and mean what you say––especially in mediation. Remember that every move is being carefully weighed and evaluated by the other side. If you really have no more moves to make, it is often necessary to say “take it or leave it.” If there is still room to negotiate, however, sending a message that you are done negotiating may result in closing the negotiations for good when that was not your intention.

Don't burn bridges. It is not unusual for the underlying facts and circumstances to change during litigation. When the unexpected happens, positions taken at mediation may no longer be viable. It is therefore important to maintain bridges of communication with other counsel, opposing parties, and the mediator. Appreciating the time spent by all in mediation, shaking hands at the end of the session (whether the matter resolves or not), and keeping minds open to further discussions are important ways to ensure that there is always a bridge to resolution.