for Mediation: The three things your client must know
The most important part of preparing for a mediation is not reviewing the facts of the case, reviewing the law governing the case, or even reviewing the pleadings that have been filed so far. By far the most important part of preparing for mediation is preparing your client. Whether you represent a plaintiff or defendant, your client needs to understand three things: the purpose of mediation, the process of mediation, and the role of the mediator.
purpose of mediaiton
The first part of preparing your client for mediation is explaining why you are going to mediation in the first place, and to be certain that you have "buy-in" from the client. Mediation is a reasonable alternative to the uncertainty of litigation, and brings disputes (and attorneys fees) to an end. Your client will need to be ready to accept less money than hoped for, or to pay more money than he wants to, in order to obtain a result that, while perhaps imperfect, is certain.
The reason most people go to mediation is to avoid the cost and uncertainty of litigation. The cost of litigation is not measured in attorneys fees and costs alone, especially for the plaintiff whose lawyer is working on a contingency. The cost is much broader. For both sides, litigation can be very time-consuming and distracts parties from their life and business. For example, a plaintiff suing for wrongful termination will be distracted from either looking for a new job, or performing well if he has a new job. For the defendant, the cost is measured not only in attorneys fees but in time spent by executives and owners who, instead of doing their jobs, spend hours in depositions, or meeting with lawyers to review documents.
The uncertainty of litigation is just as harrowing as the cost. No matter how good a case seems, there is no guarantee that a judge or jury will see it the same way you do. In fact, the more certain your client is that he or she will win at trial, the more you need to explain that there are no guarantees.
process of mediation
Once your client understands the purpose of mediation, he or she needs to know exactly what mediation is, and what it isnít. Be sure your client knows that the process of mediation is a back-and-forth negotiation, orchestrated by a neutral mediator who has no stake in the outcome. The client needs to come to the mediation in the spirit of compromise, and should not expect the mediator to beat the other side into submission.
During the mediation the mediator will comment on the relative merits and problems with your case. Your client needs to be open to hearing a different view of the facts or the law. Your client also needs to be willing to process new information. Even if the case has been litigated heavily with much discovery, a new fact may come up at the mediation that will change the way you and your client look at the case.
Mediation is not only about the money. While in most mediations the mediator will go back and forth between the parties conveying offers and counter-offers, he or she will also suggest non-monetary items that might be included in an offer or counter-offer. Sometimes, for example, a business dispute can be resolved by having the parties enter into a new, mutually beneficial business arrangement. Encourage your client to be creative as well as flexible as the mediation proceeds.
Should you tell the mediator your "bottom line?" I always discourage parties from telling me the most they would ever pay or the least that they would ever accept. Once someone has committed himself to a bottom line, it is awkward or even embarrassing for the person to change his mind. So please, keep an open mind, and be willing to modify what you thought would happen at the mediation if you hear good reasons to change your views.
role of the mediator
First, the mediator will not decide who is right and who is wrong in the dispute. Nor will the mediator order your client to accept or pay a certain amount. Rather, the mediator is a neutral party who has broad experience in the specific area of the law, and who can offer guidance as to what the possible results might be if the case were tried.
Be sure to explain to your client that part of the mediatorís job is to play "devilís advocate." This means that the mediator will test your theories of the case, and challenge your conclusions. This doesnít mean that the mediator agrees with the other side, or thinks your case is meritless; he or she merely wants to make sure that you have considered the case from all sides, and that you fully recognize that like all cases, yours has both strengths and weaknesses. Clients sometimes are offended when the mediator plays devilís advocate; be sure that your client knows that this will happen, and that in no way does it impugn the mediatorís neutrality. To put it another way, the fact that the mediator challenges some of your positions does not mean he is siding with your opponent. Keep in mind that part of what you are paying for in mediation is the expert, and neutral view of the mediator. You may not agree with it, but you should consider all the points he or she makes before reaching any final conclusions about how much your case is worth.
Presenting Your Case to the Mediator
You will have two methods of presenting your case to the mediator; a written brief, and oral presentations (both formal and informal) at the mediation itself. Be sure to use these opportunities in the best possible way.
Mediation briefs should be short, generally no longer than ten pages. Give the mediator the basic facts of the case, and an overview of the law. If you have key documents, such as a contract, be sure to include them as well. Also, if there has been discovery and there are relevant sections of depositions, submit them to the mediator. But, be judicious. The more paper you ship to the mediator, the less likely he is to read everything. And if there are one or two passages you want to call his attention to in a deposition, donít send the whole document, just what is needed.
Most mediations begin with a general opening session attended by all parties and the mediator. At the opening session each partyís counsel will present an overview of the case. This is not the time for arguments or cross-examination; rather it is a time when counsel can speak directly not only to the mediator but to the client on the other side. Be polite as well as persuasive. If your presentation is loaded with adjectives about how bad the other side neither the mediator nor the other side is likely to listen attentively.
In addition to an oral presentation, some counsel prepare elaborate Power Point or other such presentations. This can be useful, but keep in mind that the mediator is not likely to be dazzled with high technology. All a mediator wants to know is what happened.
Keep in mind that your chance to influence the mediator is surely not limited to the opening session. You will have many meetings with the mediator over the course of the mediation, and each of these is an opportunity for you to help the mediator understand how the case looks from your point of view. But be prepared to be challenged: as I said earlier, part of the mediatorís job is to play devilís advocate, and he may poke holes in some of your arguments. The whole purpose of the mediation is not to determine who is right or wrong; the purpose is to determine how best to settle the case in a manner that is consistent with the reasonable risk factors in the case.
The three keys to a successful mediation: flexibility, creativity and patience
Without question you and your client have come to the mediation with a number in mind that you think is the right number at which to settle the case. But a key to mediating successfully is being flexible, being willing to change your prior analysis of the case when you receive new information. This new information may come from the other party, from the mediator, or both. Successful attorneys are willing to reevaluate their position when new information casts doubt upon prior analyses. For example, suppose that in a wrongful termination case you represent an employer who terminated an employee for good cause. According to the employeeís direct supervisor, the employee had performed poorly for months. In addition, he was an employee at will, who could be terminated with or without cause. Although the employee was a minority, you feel that his poor performance makes it clear that there is no discrimination involved. You came to the mediation willing to pay nuisance value, and nothing more.
At the mediation, however, the employeeís lawyer attacks the credibility of the supervisor. He produces excellent performance evaluations from prior supervisors, and asserts that this particular supervisor has made racially offensive regarding the plaintiffís ethnic background, and that he has systematically fired all members of the plaintiffís background over the past several years. Your case has now changed dramatically. Do you have the flexibility to look at the case differently? This doesnít mean you must immediately accede to the plaintiffís demands. It does mean that you must evaluate the case in light of the new evidence and its potential impact on a judge and jury.
The new information may also come from the mediator. The mediation may be the first time that someone neutral has given you his or her evaluation of the case. This doesnít mean you accept is as gospel; but if the mediatorís analysis differs markedly from yours, you should at least pause to ask yourself whether your analysis needs to be reevaluated.
Sometimes a mediation is a pure exercise in mathematics: the plaintiff demands $X, the defendant offers $Y, and the day is spent going back and forth until a mutually acceptable number is reached. But there may be cases in which an impasse is reached on the money, but the parties work in good faith tofind a creative solution involving other issues. For example, a landlord may be suing a tenant for back rent, and the parties may be unable to reach agreement on the settlement amount. But what if the tenant needs other space, and the landlord happens to own another building which is perfect for the tenantís needs? Perhaps the tenant can pay a smaller amount in back rent, and enter into a long-term lease for the new property? Or perhaps the tenant will agree to pay the full amount of the back rent, and obtain certain concessions on the new lease. You never know what creative solutions might be available until you "put a pin" in the money discussion, and brainstorm about other ways to give each party something it wants.
In my experience as a mediator, the most important key to success is patience. This is especially true if the parties have been flexible. For example, suppose a defendant recognizes during the course of the mediation that the claim is more substantial than at first thought. The defendant is slowly getting used to the idea that more money is needed. Perhaps the defendant needs to confer with someone else by phone. While all this is going on the plaintiff simply has to be patient. Saying things to the mediator such as: "Unless the next offer is in six figures, Iím outta here," may feel good, but isnít helpful. Sometimes it just takes time for a defendant to get to the point of being willing to pay a substantial sum. The same can be said for a plaintiff. He may have come into the mediation imagining a settlement that will make him secure for life, only to find that the evidence isnít quite as good as he first thought. The defendant needs to be patient and let the plaintiff work all that through. There really are no shortcuts; mediation just takes time, and the more a party tries to rush it, the more likely it is that the mediation will fail.
Document the Settlement
Once the parties have reached a settlement, donít rely on the handshake. No matter how late it is or how tired everyone is, take a little while longer to document the agreement. Even if the document is a hand-written list of deal points, it is prudent to get it done and signed. The last thing anyone wants is an argument the next morning about the tax treatment of the settlement, or how much time the defendants would have to pay out the money. Get it in writing before anyone leaves.
A good way to help this process along is to bring a draft settlement agreement, with boiler plate provisions on most points, and with the money and other terms left blank. Bring along a laptop, or have someone available at your office to fill in the key terms, or at the very least, enter the new data by hand.
Like so much else in life, the mediation is as valuable as you make it. If you take the process seriously, and are willing to re-think your original evaluation, you will find it to be a great process which saves your client from the uncertainty of leaving the decision to a third party. If you view the mediatorís "devilís advocate" comments on your clientís position as a challenge, and you view the mediator as one more opponent to vanquish, you are probably not getting the most out of the mediation. And finally, if you are patient enough to let the process take the time that it needs to take, you will usually be rewarded.