Discard the “Winning” Trial Mindset
Mediation is not the place for attacks and withering cross-examinations. I am a strong proponent of the joint session and opening statements. But they must be approached with care. The opening statement in mediation is targeted to the other side, and they are not an objective recipient—they have very strong and probably differing views of the case. Note that I did not say that the opening is targeted to the mediator. While it may help the mediator, he or she is not the primary audience for the opening.
Because your adversary would never sit on a jury in your case, it makes little sense to open as you would before an unbiased jury. You are unlikely to convince the other side to agree with you. What you can accomplish is to respectfully set out your views and the risks to the parties in further litigation. I suggest you always end with an olive branch—even if nothing more than an expression of your own open mind and willingness to listen, along with a thank-you to the other side for embracing the mediation process.
It may well be that you have to make some arguments that the other side must reject and refute. It is always wise to temper these arguments with something conciliatory, such as recognizing the risks of trial and the jury process. The subject matter will vary from case to case, but the effect of these words can be transformative. Assuming you have agreed to mediate—as opposed to participating in a mandatory court-annexed mediation—your willingness to settle and compromise is a given. There is no harm in expressing it openly.
Too often the parties take the approach of announcing this is a case they are “sure” to win. This is not an auspicious beginning and will not help the mediation process. If you are “sure” to win, then there is no reason to engage in mediation, which by its nature involves compromise from all parties. A mediator faced with such an opening statement is faced with the task of convincing that party that mediation is in fact a useful exercise and imploring the party to engage in the process with an open mind.
Consider Allowing the Plaintiff Some Leeway
In many cases, the plaintiff may have to open somewhat strongly. It may be that the party plaintiff expects it, and it may even be part of the catharsis needed for a genuinely aggrieved plaintiff to get a “day in court” experience. Temper your response to benefit the negotiations. Two metaphors come to mind: “build bridges, don’t burn them” and “fight fire with water.” I am not suggesting surrender, but often simply acknowledging disagreement in a general way and leaving the details for caucus and transmission through the mediator may be the more productive course.
Bring the Right People
The decision makers have to be there. Meet with your client beforehand to discuss the upcoming mediation. Your client may have misconceptions about the process and perhaps his or her own agenda. It is important that you be on the same page. The uninitiated client should understand that this is a conciliatory process more than an adversarial one.
Confer with the Other Party’s Attorneys
It is always preferable to go into mediation with some goalpost offers and demands. In addition, if the relationship among counsel is a productive one, some joint preparation—often facilitated pre-mediation with the mediator—can add to the potential for success. Simply being told by one attorney that the client is angry or upset can help the other side prepare for some emotional outpouring.
Prepare Yourself and the Mediator
The value of pre-mediation consultations cannot be overstated. Putting aside the technical aspects, these sessions enable the parties to build a rapport with the mediator and to address some of the potential obstacles to settlement. Perhaps the most important issue to address here is any issue with your own client.
On the plaintiff’s side, it may be that your client has unrealistic expectations or is very emotional about the matter, or both. Perhaps including the client in a pre-mediation session will smooth this out. Nonetheless, just knowing this is invaluable to the mediator.
On the defense side, perhaps we need more money on the table. Maybe the case is under-reserved and a mediator’s imprimatur can help to procure an adjustment.
Share Client Concerns and Issues with the Mediator
As noted, there is perhaps no more useful information that you can share with a mediator than your own client challenges. Obviously, this is information shared privately, but an informed mediator can make good use of this important information. For example, in some cases, the plaintiff’s attorney has invited me to confer with the client alone. On the defense side, a mediator might share some risk management perspectives that resonate and help close a gap between defense counsel and an institutional client or an insurer.
Understand the Ying and Yang
Nearly all mediations, when we get to offers and demands, begin with the parties far apart. Often both parties consider the respective figures coming at them to be, at least initially, unproductive and perhaps even insulting. Be prepared, and prepare your client for this. The mediator can help here. However, particularly in the case of an emotional plaintiff, having reduced expectations for the early negotiations can take some of the edge off. I often tell the plaintiff that the other room is here to pay as little as possible to settle the case. That’s their job, and you should not take it personally—just as it is your lawyer’s job to recover as much as possible. This obvious and candid comment has never been poorly received. To the contrary, the parties often seem to find it refreshing.
Be Patient
Trust the mediator to set the pace. It may sometimes be true that the parties come to mediation quite close in their positions and valuations such that you might think the mediation can be completed in short order. This is unlikely. Progress is typically perceived as slow. The parties may be in different emotional places. Hopefully, the half day or day will be marked by productive discussions, effective input from the mediator, de-escalating tensions, and finally a settlement.
Don’t Rush to Bargaining
While in some mediations, including those with very active pre-mediation conferences, it may be possible to get right into negotiations, some more emotional cases may take some time. Get a feel from the plaintiff. The plaintiff may need to tell a story or may also want some explanations from the defendant. If you are a defendant, try to get a feel for the pacing. In highly emotional cases, the plaintiff may need some time before he or she is ready to quantify.
I hope these commentaries are helpful. See you at the big table!
