It is estimated that 85 percent of all cases settle before trial. Hence, the role of the mediator can be crucial in getting to good outcomes. In the winter 2016 edition of Litigation Journal, Joel Levine, an alternative dispute resolution practitioner in Miami, puts forth seven tips for avoiding what he calls “self-inflicted wounds.”
Levine, who identifies his style of mediation as “intensely proactive,” targets much of his advice to private mediators chosen by the parties. “Mediation with private mediators presents greater opportunities for influence by the parties,” he writes. “As lawyers with private practices to promote, private mediators often go the extra mile to bring about a settlement.”
Prepare, prepare, prepare. Levine writes that he’s surprised by lawyers who meticulously prepare for trial but try to wing it at mediations. Whether its laziness or trying to keep costs down, he writes, it can take a toll on the outcome. He recommends being prepared to cover “the governing statutes, rules and precedents” of a case. Because of the likelihood of a mediated settlement rather than a trial, he advocates rethinking “the balance between using what you have at mediation and waiting to surprise the other side at trial. Remember that the other side probably already knows about it, and the trial may never happen anyway,” Levine writes. He also advocates following the example of great trial lawyers who “know as much about the subject matter, economics and calculations in their reports as the experts do.” Lack of preparation, Levine concludes, “contaminates all aspects of mediation.”
Choose the correct mediator. Because cases, personalities, fees and mediation styles vary, Levine recommends hiring the type of mediator you need for your specific situation. Although Levine suggests “choosing a creative, proactive mediator who has an understanding of the mediation process and a track record of bringing people together in various settings,” he concludes that “what counts is a flexible, intelligent person able to handle a wide range of situations.” Furthermore, Levine writes, “many proactive mediators know they’re doing a good job when each side accuses them of favoring the other.”
Prepare the mediator. Mediators influence the ultimate outcome, and a well-prepared one can save time, make things happen and bring assurance to all the parties by showing he understands the case, Levine writes. But no matter how good the mediator is, she will be severely strapped if she is presented with information for the first time at the mediation. Take advantage of the opportunity to speak with her before the mediation, where Levine recommends providing the mediator with questions to ask the other side.
Prepare the client. Your client may be very familiar with the litigation and mediation process, but if not, explain it to them, Levine advises. Otherwise, they may be turned off by the “Turkish Bazaar process of protracted bargaining toward a settlement,” he writes. Part of letting them know what to expect includes helping them “understand that a good proactive mediator is an equal opportunity offender.” If your client is comfortable from the start, “it will make progress easier and certainly lower your client’s blood pressure,” Levine writes.
Ask the mediator for help. In Levine’s experience, excellent trial lawyers will request help at various times during the process, while newbies “trying to impress will often attempt to appear omniscient.” He writes that lawyers can score points with clients by letting them in on the reason they chose a mediator, such as because he was “knowledgeable in this area and can help frame proposals as well as evaluate whether the bad guys’ ideas are fair.”
Refrain from insulting anyone. Although Levine writes that “certain” lawyers seem to like opening their case by insulting the other side, he advises creating “as collegial an atmosphere as possible while letting the other side know you are capable of going the distance if necessary.” He relates a winning mediation where the parties met and the conversation took on a tone of “ ‘we have a mutual problem to solve,’ rather than ‘your client is trying to screw me.’ ” Levine writes, “Because mediators can influence the outcome of a settlement – even if only within a narrow range – it never makes sense to alienate people who are trying to help you.”
Strive for clarity. Good mediators should repeat what they will say (and write it down) before leaving the caucus room, Levine writes, and good litigators will clearly communicate with both their clients and the mediator. “The more complex the issues, the more precise counsel and mediator must be,” he writes. Because of the likelihood of settlement, Levine advises making the most of mediation by “preparing diligently, choosing the right mediator, asking for help when appropriate and being collegial and clear. Good, and maybe even divine, consequences will follow.”
Litigation Journal is a publication of the Section of Litigation.