by Brian R. Jerome, Esq.
The process of mediation can be less formal than a courtroom, but its more relaxed setting does not lessen the importance of preparation and appropriate advocacy to achieve favorable results. Advocacy permeates this process well before the parties enter the mediator’s conference rooms. Attention to detail early on maximizes the prospects of having satisfied clients who feel their cases have been handled well. These ‘Commandments’ of Mediation Advocacy will help you achieveth the greatest success!
Determine Thy Timeline (How do you know When to Mediate?)
Generally, the best chance to get a case settled may be when it is mediated early. Time and money is saved, and early mediation brings people to the table while the parties may be more flexible and willing to hear strengths and weaknesses in their cases rather than after their positions have solidified and after considerable litigation expenses are incurred. However, investigation and case preparation has to reach a point where the case can be properly evaluated. There can be reasons why an early mediation may meet the parties needs, including varied situations where parties cannot afford or withstand the time, expense, stress, or uncertainty of protracted litigation and/or trial, where extensive discovery may serve to undermine a parties’ position, or where the parties are either required or desire to continue an ongoing relationship. A skilled attorney or advocate should consider and fully examine these considerations with their clients early on, since dispute resolution opportunities may be lost after months or years of contentious litigation.
Contemplate Thy Mediator
No two mediators are alike; careful consideration should be given to their selection. The mediator’s personality, experience, style, and skills should fit the particulars of the case so as to best enable the building of trust and respect among participants, maximizing the prospects of a satisfactory settlement.
While neutrality, patience, perseverance, specific training, and substantive experience are some of the most important traits to look for in a mediator, other subtle factors come into play. Will the mediator’s personality fit with the parties well enough to earn their trust? Does the client need a gentle hand, a forceful push, or perhaps both? Can the particular mediator bring improvement to the discord created by litigation, and further, aid in the negotiation of a deal? How many cases of the type involved in your matter has the mediator handled, and with what success?
Consultation with colleagues who have worked with a potential mediator should be considered. Unlike the context of an arbitration, where ex parte communications are inappropriate, nothing prevents you from calling a potential mediator about your case. In fact, asking questions about the mediators experience and inquiring as to how the session would be conducted is time well spent by a strategic advocate who wants a satisfied client.
Be Cognizant Of Thy Opposition
Determine in advance who is coming from the other side. Be sure that the individuals(s) with full settlement authority are going to be physically present at the session. Whenever possible, determine the backgrounds, personality, and style of all participants by using sources available on public media or consultation with colleagues; this preparation will greatly assist your collaboration with them, and improve your ability to convince them of the merits of your case, much akin to jury research in a courtroom setting.
Equippith Thine Client
Preparing the client includes determining their interests, needs, motivations, concerns, and objectives; hopefully dispelling any unreasonable or unrealistic expectations they may have as well. A range of possible outcomes at trial ought be discussed. It’s also important to examine and understand the client’s tolerance for risk.
Be sure to explain to clients that they will be active participants in the mediation session and that most mediators will encourage them to speak at the session so as to hear directly from them what is most important. A client who speaks well for their position may wish to participate actively in the joint opening session with a carefully planned presentation. Having the client make a brief presentation in the right setting is very effective, but with the wrong client it could have disastrous consequences. Discuss with your client what information they should reveal, and be sure they understand which matters should not be shared. Clearly determine ahead of time how they will participate and what they intend to say.
Share with your client all available information about the mediator, their style, and how they conduct the mediation session. The differences between a trial and a mediation should be discussed so they know what to expect. The joint opening session and opening statements should be reviewed. The private nature of the individual caucuses the mediator will have with each party should be explained. Provide your client with specific guidance as to what they will or will not say during these private caucuses.
The confidentiality of the mediation process, both as outlined in the mediation agreement and under the provisions of the Massachusetts confidentiality statute, MGL c. 233 s.23C, should be explained to the client.
In cases involving parties such as businesses or corporations, consideration should be given as to who, among persons with authority, should attend the mediation. Will the personality and demeanor of an individual detract from collaboration efforts? Is there a personal animus that is likely to have a negative effect? When issues of personality or emotion are apparent or anticipated, advise the mediator in advance.
Prepare For Thine Session
Plan to discuss all legal aspects of the case and be familiar with not only your client’s needs, but the other sides’ interest and goals as well. Strategize possible solutions to meet their needs as well as your own. Be prepared to highlight and explain the strengths and weaknesses of your case, and anticipate the arguments the opposing party is likely to make and the questions a mediator may ask. A client or lawyer that can convince the mediator that he has considered all important facets of the case is more likely to convince a mediator that their position is serious and reasoned as opposed to mere posturing. Research jury verdicts and applicable case law, and be prepared to distinguish facts or legal issues in verdicts or legal decisions the other side may use to support its position, in addition to the ones that support yours. Bring copies of any pertinent cases with you to the mediation session.
Composeth Thine Memorandum
Provide a mediation memorandum in advance to your mediator. The mediation statement is the first opportunity to gain credibility and support with the mediator, so invest appropriate time crafting a compelling theme or story. Be concise and set forth the background facts, legal theories, and defenses for the case. Give the mediator the pertinent settlement history and the present demands and offers.
Make an informed decision whether to send the mediation memorandum to all of the parties or to send it confidentially only to the mediator. Certain sensitive issues may not be best raised in an exchanged brief, since it may polarize the parties and intensify animosity or resentments. You may choose to share it in a confidential memorandum only to the mediator. Private and confidential “eyes only” communications work best when used to discuss a party’s underlying needs and interests rather than positions. Your positions are best laid out in your public, shared submissions. Providing this information in advance of the session allows your mediator appropriate preparation time, and ultimately brings benefit to your case.
The private submission is an opportunity to tell the mediator how s/he can best help you, raising sensitive problems that you or the other side may have, suggestions to overcome these obstacles, and discussion of other intangible issues beyond monetary components. Providing such information to the mediator in advance of the mediation session, affords them opportunity to begin consideration of mediation processes which fit the particular needs and interests of the parties. The prepared mediator is then able to more immediately focus in on the issues during the session, as well as to air the more difficult, associated questions.
Consider attaching concise demonstrative evidence that may assist you in explaining your perspective, such as photographs (a picture is worth 1000 words), portions of deposition transcripts, medical records, or expert testimony. Highlight these exhibits and don’t make the mediator or opposing counsel pore over pages reading every word to figure out which sentence(s) in a lengthy document is the one you’re relying on. Information you attach to a mediation memorandum should be tabbed or marked for easy reference, and should be readily accessible at the mediation session so that you can avoid fumbling while searching for documents or not have the information you need at hand.
Encourage the other side to provide a copy to their client. If you have a concern that the party on the other side of the case might not be given a copy of your summary to read, prepare two copies. Serve both on opposing counsel and explain that one copy is a courtesy for their client. Bring extra copies to mediation to provide one to the other side. If it was not shared before, you can be sure it will be read during caucus.
Persuadith Thine Audience
There are mixed opinions of late as to whether and to what extent an opening statement should be made at mediation. Certainly the risk of alienating the other party by making offensive or inflammatory opening comments is often stated by many attorneys, parties, and by many mediators as reason to avoid or limit an opening statement.
Trial lawyers, who are accustomed to speaking with and negotiating only with opposing lawyers, have the opportunity at a mediation to make a pitch directly to the principles on the other side. The tone of the opening presentation should then strike a balance between interest in settlement and readiness to litigate. It is not helpful to be offensive or unnecessarily aggressive, but best to utilize the opportunity to make your legal arguments and to persuade decision-makers of the merits of the case and the risk of litigation if settlement is not achieved.
You want the mediator, opposing counsel, any insurance carrier, and the decision-makers to know that you are organized, well prepared, knowledgeable, and can effectively tell a compelling story to a third-party decision-maker whether it be a judge, arbitrator, or jury. Present your case in a way that is reasonable and palatable to the other side. Do not assume that the other side has read what you’ve filed in the case or even the mediation brief.
Mark Twain once said, “I spent a week preparing for an impromptu speech”. While a week is unneeded, an opening statement should not be off-the-cuff, but rather, strategically thought out and prepared.
Aireth Thy Grievances
It is in private caucus that the parties and the mediator roll up their sleeves and where the hardest work of the mediation session takes place. It is also where the mediator will ask his toughest questions, focusing the parties on the key issues in dispute. A skilled advocate should anticipate what these questions will be and be prepared to answer them and/or have the client prepared for them, as well as having a plan of who will say what.
Separating opposing parties allows more open communication between the party in caucus and their mediator, helping the mediator understand the party’s point of view better. Without the presence of the opposing party, the client is hopefully less tense, angry, and defensive, and more flexible and creative. Clients who know that their private discussions with the mediator are confidential tend to speak more openly about their case and personal interests, providing information about their underlying interests and assumptions as well as suggesting new ideas for solutions. It is often during these private caucuses where a party has the opportunity to vent or tell their story so they feel they’ve had their “day in court”. Prepare your client to share their thoughts and feelings in a reasonable manner.
In addition, if a client has unrealistic expectations, the mediator will be able to directly address this in private caucus, diplomatically reality testing their assumptions. If the advocate believes that the proposed settlement meets all of the needs of the client and that at trial a better outcome is unlikely, the mediator may be a useful ally in convincing the client to settle.
Worketh Thine Settlement
Parties and their counsel should understand and appreciate the importance of embodying agreements reached at a mediation session being articulated in a detailed and signed document. All material terms of the agreement should be included in this Mediation Settlement Agreement so as to make it an enforceable contract.
Parties and counsel should anticipate early on, any and all potential issues that may arise when formalizing and embodying the material terms of the agreement in a Mediation Settlement Agreement and/or, should it be followed by a further release, all anticipated and needed terms of the release.
Waiting until the end of a mediation session to raise and discuss material terms required in both the Mediation Settlement Agreement and the release can result in disintegration of the anticipated deal. Consider bringing a release with you that could be executed at the end of the mediation session, or at least shown to the other parties when discussing specific terms required in the final release.
A skilled and experienced mediator will likely anticipate the issues that must be agreed upon before final settlement can be reached, but don’t rely on the mediator for this; raise these issues during the mediation at an earlier time and in an appropriate manner, such as in private caucus first, to help you avoid common pitfalls at the end of the session that could jeopardize settlement.
Ye Shall Persevere
Taking the steps suggested in these ‘Commandments’ at the beginning, middle, and end of a well-crafted mediation process will significantly increase your chances of obtaining a favorable result and most importantly, a satisfied client.