Tips on Preparing the Client (and you) for a Successful Mediation
In the majority of cases, prior to the resort to any alternative dispute process, the client is well schooled as to the complexities and uncertainties of litigation. The case has been pending, at least in the client’s opinion, for much too long and the trial is quickly approaching.
As a result, the client has long grown tired of meetings with counsel, responding to discovery requests, continual interferences with personal and business interests, and receipt of monthly attorney billing statements that seem to grow exponentially.
As a result, the client is usually suffering, in varying degrees, from one or more of the following symptoms:
• Extreme dislike and distrust of the opponent and the opponent’s counsel
• Financial strain
• Emotional stress
• Frustration with delays and setbacks
• Distrust of the legal system and its inability to provide immediate relief
• Disagreement with counsel as to trial strategies and settlement options
• Personal and/or business fatigue
• Confirmation bias
• Unwarranted belief in the strength of its case and the corresponding weakness in that of the opponent
• Over simplification of issues necessary to prevail at trial
• The utter capitulation by the opponent as the only settlement position due to the client’s investment in time, costs and attorney fees
These and other items of “baggage” that the client may bring to the mediation can derail the session before it even gets started.
As your client’s advocate it is important that you recognize these issues well before the session and activity engage your client as to the nature of the mediation process and its dynamics in order to maximize settlement options.
What follows is a “DO” and “DON’T” list in order to improve the chances
for a successful mediation.
DO:
1. Explain how the process works. Explain the differences between arbitration where an independent party makes a decision after hearing the facts versus mediation where the parties formulate their own resolution through the assistance of a neutral mediator. Although the distinction is clear to the attorney, some clients may need clarification.
2. Explain that the process, including all communication exchanged, is confidential, thus freeing up the parties to have more open and honest discussions geared towards a resolution.
3. Emphasize that this is an opportunity for the client to help fashion a reasonable final solution to the conflict and to create certainty and closure, thus avoiding having to live with a ruling, order or verdict that may be much less favorable.
4. Explain that the process to be successful, is dynamic. It requires the parties to engage in active listening and creative problem solving. Merely re-stating prior demands or responses, financial or otherwise, will not be productive.
5. Contact opposing counsel prior to mediation to prepare for the upcoming session and discuss any procedural issues in advance. Involve the mediator, if possible. You are going to be face to face with opposing counsel in a mediation session – you might as well use the pre-mediation phone conference to remove your litigation hat and begin the process of creating settlement options and in creating a mediation environment conducive to problem solving. Initiating the pre-mediation telephone call is a sign of professionalism, not weakness!
6. Use your pre mediation discussions with the mediator to address if and when a joint session is appropriate as well as any “hot button “issues that might derail the session.
7. Make sure that all information necessary in order to come to a resolution is available for exchange or review, or is otherwise immediately accessible from other sources. Develop a strategy for selective disclosure of information designed to solicit reciprocal disclosure by the other side. Lack of information becomes a barrier to resolution.
8. When the dispute may directly or indirectly affect individuals other than the participants, or if the client may otherwise need informal permission or approval from a third party, consider having those persons in attendance or available by phone, being cautious, however, not to allow the process to be controlled or undermined by the third party.
9. In the context of commercial disputes involving various entities, make sure that the person who is participating in the mediation is knowledgeable and informed as to key facts, and has full settlement authority to bind the principal and to execute any settlement agreement or memorandum of understanding at the conclusion of the mediation session. Conversely, be cautious of those representatives who may, as a result of their own personal involvement, be forced to reveal their own errors or omissions in the context of the settlement process that may in turn taint or derail the settlement process.
10. Allow enough time for the mediation to come to its logical conclusion and for the parties to fully explore resolution of all issues. Neither the client nor counsel should schedule other activities or phone conferences or otherwise create arbitrary time limitations. As a rule, the initial session will always take longer than the parties envision.
11. Assist the client in the preparation of the “Problem Statement”, the mediation equivalent of the opening statement. Emphasis should be placed on a client statement designed to personally convey problem solving information in a non-inflammatory, non-accusatory fashion. A carefully crafted, well rehearsed and honestly delivered statement will almost always force the other party to reciprocate in like fashion. In addition, the preparation of the statement should enable the client to define and clarify the exact issues in dispute.
DON'T:
12. Expect the mediator to magically assist the parties in reaching an agreement without the active, knowledgeable and positive participation of each party and counsel. Mere shuttling of offers and counteroffers between rooms with the expectancy of arriving at acceptable middle ground very seldom results in a settlement, much less one that is a result of creative problem solving.
13. Allow or permit yourself or your client to continue to take positions that cannot be supported, either factually or legally. Deftly and subtly, if necessary, use your problem solving skills to assist in slowly moving a client away from arbitrary and illogical positions.
14. Confuse your role in this process versus your role in the courtroom. You are here not only to persuade the mediator and the other party and their counsel, but to help your client facilitate an agreement. Save your trial skills for a later time. If the firm’s and the client’s resources permit, consider involving co-counsel with an ADR background to participate in the session and to assist in the preparation and strategic planning phase.
15. Come unprepared, having given only cursory thought to planning a strategy. Well in advance of the session and with the help of your client, develop an initial mediation agenda with the understanding that it will change during the course of the mediation. In addition to monetary options, discuss the client’s interests, needs, and motivations. Attempt to assess those of the other party. When engaged in this process, emphasize to the client that mediation discussions and admissions are not signs of weakness nor should you by participating, be viewed as now being in the enemy’s camp.
16. Expect a quick resolution. Remember that the other party and their attorney must “buy in” to the process as well, and that they may have issues previously unknown that will have to be addressed. Impasses can and will occur. Encourage the client to be patient and to work through those temporary barriers.
17. Expect the process to be pain free, without anxiety and tension. Statements and accusations will be made that will anger you and your client, and vice versa. Controlled confrontation and venting are usually the ingredients to gain the understanding necessary to come to a resolution. Listen attentively and attempt to assist in re-framing the issues to minimize inflammatory statements and toxic tones.
18. Allow the client to limit settlement boundaries in terms of a monetary amount only. Be creative in helping the client to explore additional non cash components of an agreement that would be acceptable. Try to expand the “pie”. Explore issues that are unimportant to your client but important to the other side.
19. Leave the session without a signed Memorandum of Understanding (MOU). Even in those cases where only several issues of have been agreed upon, it is imperative that a writing be signed. Parties are notorious in having “buyer’s remorse” following reflection and third party input.
20. Give up and leave the session prematurely. Even if the initial session does not result in an agreement, continue to communicate with opposing counsel. Oftentimes, the disputants (and sometimes counsel) need time to digest information that was exchanged at the initial session and to evaluate the strengths and weaknesses of their position as well as those of the other party. Give economic reality a chance to set in. If appropriate, schedule a second session – the sooner the better. Remember, a second session is still much, much less expensive than a trial.
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