Ten years ago I decided to become a mediator. While I still loved the thrill of the jury trial, particularly the moment when the clerk asks, “Has the jury reached a verdict?” I was less enamored with preparing a case all weekend long because I was the first case out, only to discover Monday morning that I was one of six “first out” cases. After trying 150 jury cases and running a law firm, I thought I had the skill not only to try cases, but to help people fairly evaluate their case and bring them to settlement.
Sometimes after a particularly difficult, but ultimately successful mediation one of the lawyers will say to me, “Paul, I knew you were the right mediator for this case!” I accept the compliment graciously, but the praise really goes to the attorney for understanding the mediation process and how a mediator can move the parties along. As a mediator I have a set of skills: listening, trial experience that helps evaluate the case, patience, sympathy, humor, and the figurative smack upside the head. The “right mediator” knows when to use which approach.
The value of mediation is that the inability of the parties, on their own, to negotiate a settlement doesn’t mean that the case has to go to trial. A mediator helps the parties navigate past the emotional barriers, the misunderstandings, and the failures in communication that inhibit a settlement.
Many parties need a sympathetic listener who assures them that they are doing the right thing. When a party needs to be listened to, I listen. Listening provides me with the authority to then offer insight and advice. Other parties are argumentative, believing that the force of their personality will get them what they want. These people need to be guided to understanding that the value of the case lies in what an expected jury verdict will be and that louder isn’t necessarily better. Then there is the educated plaintiff, articulate and knowledgeable, who believes that he or she is the equal of the attorneys and offers opinions in that manner. To that plaintiff I politely inquire how many cases they’ve tried to a jury verdict. Then I point out that they’ve hired skillful and experienced counsel and would do well to listen to their attorney. Do they sometimes get offended? Perhaps, but what I’m trying to do is get them out of their comfort zone and to see the case as a jury might see it. There is the delicate balance between getting a party to see the case from the other side, or as a jury might see it, and losing one’s neutrality and having them believe that you’ve become an advocate for the other side.
Negotiating the settlement of a case through a mediator is a unique process that is different from direct contact with the other side. Unlike the exchange of letters and emails, telephone calls, or meeting in the courtroom hallway, a mediation session is a formal proceeding. That formality is one of its strengths, because everyone involved is at the same place at the same time and ready to discuss the case. However, since you’re not just chatting on the courthouse steps, there are some practical tips to make the mediation session successful. As follows:
1.) Prepare and send a mediation memorandum to the mediator before the mediation. The complexity of the case will guide its length, but make sure the mediator knows what the case is about before the session begins. A common error is handing a mediation brief to the mediator at the start of the session; the mediator has no time to read and absorb it at that point.
2.) Confirm with opposing counsel the status of the existing offers and demands before the mediation. An inordinate number of cases get bogged down right at the start because the parties have different notions of where settlement negotiations ended. I recommend a quick confirming letter or email to the other side stating what you understand the parties’ positions to be. If you think this advice is too basic and too simplistic to be of merit, you may ignore it to your detriment. You may be certain of where the offer and demand stand (and thus ignore this advice), and your opponent may be equally as certain, but time and time again I mediate cases where the parties disagree on where the negotiations ended. Send the letter or email.
3.) Are there liens on the file? Raise this issue, by letter or email, before the mediation session.
4.) Is everyone here? Plaintiffs’ counsel expect that the person with settlement authority will be at the mediation. If the claim’s representative isn’t going to be present at the session, let the other side know ahead of time. It is the unexpected absence of a party that causes animosity before the mediation even begins. Likewise, the defense should be on alert for the absent spouse of the plaintiff. Defense counsel may ask, “Are you prepared to settle the case today or will you need to discuss our offer with someone else?” Even if the plaintiff replies that they need to discuss the offer with their spouse, you may still proceed with the mediation, but at least there isn’t an issue that’s hidden from you.
5.) Be prepared for down time, especially in a multi-party mediation. Bring reading material, snacks, something to do. Don’t let yourself get tired or hungry; if you do it will affect your negotiation skills. Mediators will often provide lunch, or lunch breaks, but not a dinner break. As people get hungry, they want to go home and they start to compromise.
6.) Be patient. If you are defense counsel; remember that plaintiffs need their “day in court.” The process of negotiating and deciding may be routine for you, but it is extraordinary for them.
7.) Don’t skip the opening statements (i.e. we all know what this case is about, let’s just break into private sessions.) Opening statements are your chance to set the agenda for the mediation. You get to lay out what issues need to be discussed. However, most importantly, during opening statements be quiet, be respectful, and listen. Do not, I repeat, do not, shuffle papers or whisper to your co-counsel. If you do this, the message you’re sending is that nothing the opposing counsel is saying is important or noteworthy, and if that’s your position, you don’t really need to be at mediation. When a mediator convenes in the first private session with you and you start to ask what went on in the other room, he or she will never say to you “I was trying to repair the offense you caused by chatting during the other side’s opening.” But all too often, that is what actually went on.
Finally, cases that don’t settle at mediation may well settle with some follow-up contact by the mediator. Chose a mediator who will stay with your case after an unsuccessful mediation session. Follow-up telephone calls can close a case that otherwise would go back into the file cabinet.