Although mediation is often underrated, it is a crucial—often mandatory—step in a wide variety of cases, including commercial litigation, entertainment law, family law, and intellectual property law. Consider this: it may be the last time that you and your client will be in control of your case before it moves toward trial and into the jury’s hands.
The process starts with the selection of the mediator. Do not be fooled that randomly picking a mediator, even one from a familiar institution, will ensure a speedy settlement. As with the variety of practice areas and approaches to work among attorneys, there are many ways mediators vary: some may be more defense (or plaintiff) oriented; some invest more time in their cases than others, both in preparation and follow-up; some mediators may be more skilled at handling a group of sophisticated litigants, while others may be more effective in explaining the process to those unfamiliar with litigation; and there are even those mediators who do not show adequate respect for young attorneys. It is imperative to choose wisely from the beginning.
The first thing that will happen is that both sides will propose a list of mediators. So how do you decide whom to put on your list? Here are some qualities to look for in your neutral.
Your mediator needs to be able to understand the law, facts, and potential damages before anyone actually shows up to the session. A good neutral will have read both sides’ briefs and will know a basic background of the case before ever meeting the clients. You can help the mediator prepare by submitting a well-thought-out brief that includes a summary of the facts, applicable law, points of contention, damages, and any prior settlement negotiations.
Your mediator should also be able to connect with you and your client, as well as the other side. It takes a certain type of person to be able to move back and forth between two adversarial parties, catering to each one’s demands. The most enjoyable mediators to work with are those who bring empathy and honesty to the table, yet still exhibit charisma and humor when appropriate. They should treat the litigants with respect and make an attempt to learn about their claims and defenses. They should also treat the attorneys with respect, despite their age or experience level. As a young attorney, you may feel that you have a disadvantage. The mediator may assume that it is a low-value case because the partner did not show up. However, your job is to demonstrate your professionalism and to build rapport with the mediator.
At the end of the day, a mediator must be persuasive. Remember, she is batting for both sides, so although she may appear to be on your team while talking to you, she is also doing the same when she goes back to the other room. It is her job to get both sides to move from their positions until a settlement happens. Be open to her suggestions and evaluation of your case. Of course, if you find that she is severely undervaluing a legitimate claim or defense and attempting to strong-arm you into a fast settlement, it is time to find a new mediator.
Unfortunately, mediations can be long and drawn out. They are usually set for at least half a day, and sometimes multiple days for more complex matters. The back-and-forth numbers dance seems like a waste of time, but it is a strategic, psychological game that must be played. A good neutral will be patient, yet efficient. He will know when to call it a day, but he will also know when to keep pushing, and will recognize and take advantage of any glimmer of hope for a resolution. You may also want to speak to the mediator in private, outside the presence of your client. You should tell the mediator this from the outset and he should have no problem speaking to you in a caucus away from your client, as well as reconvening with you and your client after any such discussion.
A mediator cannot just sit on the sidelines running numbers back and forth. You are paying her to negotiate on your behalf, which means advocating for your arguments to the other side. This job requires her to be proactive, not only during the session but also after if the case does not settle on that day. A good mediator will not give up just because the session is over. She will make extra calls or emails to both sides to see if there is anything else she can do to facilitate settlement. Perhaps one side has another offer to make after having a good night’s sleep. If the mediator feels it will be helpful, she may even suggest a second session.
Eventually, you will find a set of mediators you enjoy working with. If opposing counsel is not amenable to any of your suggestions, consider their proposals. If you are unfamiliar with their list, call other attorneys who may be able to share their experience. Do not insist on a mediator, however, with whom the other side feels uncomfortable. It will be more effective in the long run to use a mediator who both parties respect and will listen to.
As a final note, the best way to observe different mediators’ styles before doing your own mediation is to shadow a more senior attorney. The pressure of the actual negotiation will be off you, but you will still be able to get to know the mediators along the way.