Ready, Aim, Mediate
California Lawyer

Ready, Aim, Mediate

by Robert S. Mann

April 2013

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Experienced mediators know that attorneys who approach mediation in a thorough and thoughtful manner are able to settle more cases. This approach also makes the process much more efficient and, in the end, results in happier and more satisfied clients.

But what, exactly, does it involve? When mediation was first utilized as a settlement procedure, only a few litigated cases were sent down that path. Today, however, the vast majority of litigated cases end up being mediated - and most legal disputes are settled at mediation or shortly thereafter. Mediation, then, is no longer an alternative form of dispute resolution. It is, instead, a mainstream procedure, as much a part of the litigation process as the filing of a complaint, law and motion practice, or discovery. Today, litigation and mediation are equal partners in the dispute resolution process.

The Right Approach
Because of this, it makes sense to give the mediation process the dignity it merits. Just as litigation requires a professional approach - witness the constant calls for civility in and out of the courtroom - so too does mediation.

Mediating in a professional manner involves certain nuts-and-bolts issues - selecting a mediator; serving mediation briefs; exchanging information; confidentiality rules - but it also requires a more sophisticated understanding of how the process works and how counsel and client can use that process effectively. The key is having a well thought out plan, and then following it through.

Set Goals
Prior to scheduling mediation, it is important to establish a goal. This involves the same thought process that attorneys go through when they arrange for depositions or serve interrogatories or demand production of documents: Each procedure is utilized for a purpose.

For mediation, the ultimate goal is always to resolve the case in the client's best interest. Anything short of that objective does a disservice to everyone involved, as it will only waste time and money on an ineffective process.

Scheduling Is Critical
Mediations that are scheduled too early or too late in the matter's development have lower chances of success. The timing of a mediation session is as much an art as a science, but some objective measures can help attorneys pick the right moment.

In a case where the resolution depends on an analysis of documents or where the facts are complex and uncertain - and counsel have not seen the documents or conducted thorough discovery of the facts - it is likely too early for mediation. Similarly, if resolution is tied to a legal issue that turns on a definitive judicial ruling (for example, on a demurrer or summary judgment motion), the mediation probably shouldn't be scheduled before that ruling has been issued.

Of course, these guidelines are not carved in stone. Often the uncertainty of a pending motion serves to frame the issues and create substantial risk (imagine a sword hanging overhead), which aids the settlement process. On the other hand, in a clear-cut case where there's an attorneys fee provision in a contract but counsel have waited to mediate until just before trial, the process may well be too late: The tail of the attorneys fees will wag the dog of the substantive case, making settlement a true challenge.

Allow Enough Time
One other aspect of timing deserves mention: the length of the mediation itself. Some cases can be resolved in a half-day mediation session; others require much longer. It is crucial for counsel to be realistic in scheduling the mediation so that the parties and the mediator have enough time to fully explore both the facts and law applicable to the matter before they turn the focus to the economic realities of the case. A timetable that allows everyone to digest the points without feeling rushed will yield intelligent decision-making.

Prepare the Client
Clients should not just walk into a mediation two steps behind their lawyer. They must be prepared for the process well in advance of the session so they are fully aware of what is about to happen. As the saying goes, lawyers advise - and clients decide. But they have to be ready to reach a settlement decision on an important matter.

Here are three essential questions to ask a client:

-Is the client ready to settle? A client who has not suffered any of the "pain" of litigation (dealing with discovery; appearing at deposition; paying attorneys fees) may not fully understand why settling is a better alternative than continuing to litigate. Moreover, some clients attach themselves to the litigation process for emotional reasons, and they find it very difficult to let go. It is important for attorneys to recognize these factors and guide the clients toward the greatest opportunity for a rational decision.

-Is the client willing to settle? This question doesn't have to do with the amount of money the client is willing to pay, or accept, to resolve the case. It has more to do with the idea that compromise is an essential part of the settlement process. Part of preparing a client for mediation involves what will likely be a rather blunt discussion: "If we are going to settle this case, you likely will have to take less than what we are asking for [or pay more than we would like to pay]." Mediation is not the right place to broach this concept for the first time. The reality of compromise is not self-evident to clients. The topic requires discussion in advance, lest clients enter mediation unprepared and laden with unrealistic expectations.

Preparation also should include positive talk about the role of the mediator. Explain to the client that the mediator will most certainly point out some of the weaker parts of the case. Make it clear that part of the mediator's role is to provide a neutral perspective, which is helpful for everyone. Fully appreciating that neutral perspective enables all involved to better understand the potential risks and possible rewards in the case.

-Do not warn that the mediator may attempt to intimidate, scare, and/or "soften up" the client for settlement. This negativity has no place in a professional approach to mediation. By describing the neutral's role in derogatory terms, an advocate undermines the potential success of the mediation: This tactic encourages the client to mistrust the mediator at the very moment that an atmosphere of trust and confidence is most important.

-Is the client (or its representative) able to settle? Unless the client (or client representative) is the key decision-maker with full settlement authority, someone else needs to be at the table. In addition, make sure that the client or client representative can stay through the end of the mediation to place a binding signature on settlement documents.

Consider whether there may be issues with money. Are specific financial arrangements needed? If so, have they been made?

On the other side of the coin, if an advocate plans to argue that the client is unable to pay, the opposition should be provided with the necessary financial information so it can "kick the tires" on that assertion.

Briefing Text
Several basic elements make a mediation brief professional and effective. Keep in mind that a well-written one contains both text and subtext. Text, in this context, consists of the facts and the applicable law. Subtext is what's really going on - and this often can be much more important than black letter legal principles. (Sometimes it is best expressed confidentially.)

For the text:
-Brief is the operative word. A short summary of facts, defenses, and damages is helpful.

-The mediator doesn't need to know the entire procedural history of the case; focus on the essentials and specifically on pending dispositive motions.

-Instead of attaching a copy of the complaint or providing a full description of all the legal claims, it's better to offer a more generic description ("This is a fraud case.").

-Avoid voluminous exhibits. If an evidentiary document includes something important, put an excerpt in the brief and bring the complete item to the mediation.

-Always include a description of prior settlement discussions, and offer some hint where counsel believes the case should settle.

-And don't forget to provide a list of the parties and their counsel.

Real-Life Subtext
As for subtext, here are a handful of real-life examples:

Case 1: Though it looks like a partnership dispute, what's really going on is a fight between two siblings who inherited a business and have been vying for control since the day their parents died.

Case 2: The plaintiff has a decent claim, but it turns out that his business is failing and he has no money left to throw at this litigation. He's looking to get out quickly.

Case 3: It's pretty clear that one side has over-promised on this case. Now the challenge is finding a way to lower that client's expectations without putting opposing counsel in a difficult position.

A final word on another kind of subtext: Remember that you only get one chance to make a first impression. Don't waste it. A brief that is filled with typos, misspelled words, incorrect case citations, and arguments that are facially senseless is an unprofessional way to enter the mediation process. It will not generate positive feelings in the mediator.

Warts and All
Remarkably, many lawyers take the position at the outset of a mediation that they have an unassailable case or a perfect defense. But the truth is that virtually every case will have some inherent flaws that were there all along, as well as a few added negative factors that crop up during the litigation process.

Why then do lawyers and clients so often arrive at mediation firmly attached to the idea that they have a perfect case? The likely answer is that many advocates fear to admit any weakness, however slight.

In fact, conceding weak points can make for a more effective presentation. Skilled litigators understand the most vulnerable parts of their case and deal with them in a rational way. Such advocacy is the mark of a seasoned professional - and it is also essential to the settlement process.

The lawyer and client who can accept that problems exist (and reasonably factor those problems into the overall settlement equation) are substantially more likely to resolve a case than those who stubbornly cling to the idea that they face no challenges or only minimal "nits."

Real Damages
The need for rationality is greatest when it comes to discussing money, and the foundation for a sound presentation is knowing the proper measure of damages. Astronomical damage claims are rarely supportable, often reversed on appeal, and not conducive to settlement. Nevertheless, this vital issue of calculating and proving damages is often overlooked or, worse, misstated by advocates.

Lawyers also must be able to recognize when circumstances dictate the need for an expert to testify in support of a claim. It is almost shocking how many times counsel will realize for the very first time during mediation that the damages asserted can only be proved through expert testimony. Worse still, many cases enter the mediation phase without an expert after the pretrial deadline for designating them has expired.

Confirmation Bias
One concept to bear in mind during any settlement negotiation is a phenomenon known as confirmation bias. In a nutshell, this is the tendency of all human beings to anchor themselves to facts and arguments that support their position, and to ignore or diminish any contradictory facts and arguments. An awareness of confirmation bias will promote a more logical analysis, and it's just plain street smart, considering that the trier of fact will not share either side's confirmation bias.

Gaming the Mediator
In mediator-speak, a "mediation within the mediation" refers to a situation where the lawyer doesn't trust the neutral fully enough to share the real bottom line and, as a result, mediates with the mediator by giving limited information.

This tactic is not productive because much of the real work in mediation consists of moving the parties into what is called the zone of probable agreement (ZOPA), sometimes described as the "ballpark." Once both sides are within the general boundaries of the ZOPA, a settlement usually follows. Conversely, if the parties stay well outside of the zone, settlement is only a distant hope. Thus, what the mediator really needs to know is where the parties actually want to land, in a very bottom-line way.

The sooner the mediator knows the real goals of the parties, the sooner he or she can determine whether they are apt to end up inside the ZOPA. The only way for this to happen is to have reliable information.

Making It Work
Today's mediations represent a substantial investment of time, money, and energy. A skillful approach to the mediation process - based on the suggestions here - will surely generate a return on that investment in the form of more settlements, faster settlements, and greater client satisfaction.

Robert S. Mann mediates and arbitrates construction, real estate, and business disputes at ADR Services Inc. in Los Angeles.

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Reader Comments

Morgan C. Smith - April 3, 2013
These are excellent points of advice. In the past I've written about there is really no downside to putting time and effort into treating a mediation like a trial. The only point I'd add is that attorneys should consider preparing visual aids--such as timelines, charts and graphs, multimedia PowerPoints and other litigation graphics--to increase the power of their presentation. Graphics are an underutilized tool in mediation, and the process itself of preparing these demonstratives helps test and refine theories of liability or defense; you can increase the settlement value or be that much more ready to take the case to trial. (In invite you to read my post on this topic if you're interested, http://cogentlegal.com/blog/2011/06/why-attorneys-should-treat-mediation-like-trial/). Thanks for this informative article.
Walter R. Dahl - April 5, 2013
Excellent & consise guide for lawyers preparing for their first, second or third mediation. As a mediator for the Eastern District of California Bankrutpcy Court, I will cite to it in my pre-mediation letter to counsel. Thank you Mr. Mann for your article.

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