8 Steps to Make Mediation Successful
The proliferation of mediation as a forum for resolving disputes appears to have lulled many participants into the false sense of, well, laziness. Unfortunately, far too often litigants (or would be litigants) simply “show up” for mediation with little or no preparation. This is regrettable, and often dangerous. Like most things in life, preparation is often the defining difference between success and failure, however those terms are measured. Here, then, are eight constructive steps which participants can take before arriving at mediation:
1. Decide When to Mediate.
Many lawyers and parties incorrectly believe (i) that the only way they can mediate is if they are directed by a court to do so and (ii) mediation can only occur at a single prescribed time – namely, after discovery is complete. This is simply wrong. Parties are free to engage in mediation any time they choose. Moreover, courts will often look favorably at requests to provide a judicially appointed mediator early in the case and often agree to stay litigation while mediation is pending. The advantages of mediating a case early are significant and can be determinative. First, early mediation allows parties to control litigation costs. In many cases, parties that incur thousands of dollars in discovery and other litigation related costs often jeopardize the economics of any potential settlement. Second, early mediation allows parties to attempt to constructively resolve their disputes before positions harden (or, as the case may be, further harden). Third, early mediation allows participants to build up a momentum of constructive dialogue which is often the antidote to the angry, harsh tones of adversarial proceedings. For those who argue that meaningful mediation cannot take place until a formal discovery has been conducted, I offer two responses. First, the notion that a party needs to “know all the facts” before agreeing to settle a matter is, in my experience, simply not the case. Second, parties are always free to exchange information informally in connection with early mediation.
2. Learn About Your Mediator.
Despite what many believe, all mediators are not alike. Successful participants research their assigned mediator, even if it happens to be another judge. Mediators have different styles. Some are facilitative. Some are evaluative. Some are proactive. Some are passive. Mediators also have varying degrees of substantive knowledge. A mediator with a strong background in say, construction disputes, is likely to be not nearly as effective in resolving a wage and hour lawsuit as a mediator who practices employment law on a regular basis. Although it is true that mediators do not decide cases, they nevertheless arrive at mediations with their own views, perceptions and experiences. Certain mediators are simply better suited to handling certain types of cases and certain types of personalities than others. Successful participants in mediations understand this fact and establish their mediation strategy accordingly.
3. Analyze Your Case Early and Often.
Many cases do not settle at mediation because lawyers and their clients have not diligently and thoroughly analyzed the strengths and weaknesses of their cases before mediation. This analysis should include, among other things, assessing the possible claims and the likelihood of success of each of these claims; evaluating the categories and amounts of likely damages; interviewing key witnesses; calculating the litigation costs for each stage of the case; and gauging the public relations consequences and lost opportunity costs if the matter does not settle.
4. Prepare an Effective and Persuasive Mediation Statement.
Experienced mediators understand that an effective mediation statement frames the substantive issues in mediation and also has the very important effect of setting the appropriate tone. Mediation statements are confidential documents which are submitted to mediators on an ex parte basis. Like a well crafted legal brief, an effective mediation statement will provide the mediator with a roadmap of the case; summarize the issues in dispute; realistically assesses the parties’ best and worst case scenarios; and suggest at least one plausible resolution of the matter. Preparing the mediation statement actually forces counsel and their clients to go through the challenging exercise of establishing a theory of their case and developing a strategy for success at trial. Even if the mediation is not immediately successful, the mediation statement can serve as the foundation for subsequent settlement discussions as well as the foundation for the preparation of litigation documents should the case not settle.
5. Consider a Conference Call with the Mediator before the Mediation.
An important opportunity to clarify issues before mediation exists after the submission of the mediation statements. Counsel and/or their parties can request that the mediator participate in a pre-mediation telephone conversation (which can occur either with counsel only, or with counsel and their clients present). During this conversation, the mediator can seek to clarify any open issues that may exist in the mediation statements and get a better sense of what is really dividing the parties. For example, if counsel alone are present on this conference call, they may alert the mediator to the fact that the parties do not get along well and that it would be best to keep opening statements brief. In addition, they may wish to bring to the mediator’s attention any intervening information, such as a court decision or the location of a certain document or witness which would be helpful to a party’s case and to the possible resolution of the matter.
6. Decide Who Will Attend and Who Will Speak at the Mediation.
One of the issues that is often overlooked in connection with the preparation for mediation is deciding who will attend as well as who will speak at the mediation. There is often more to this decision than initially meets the eye. In many instances, companies reflexively bring with them a corporate executive who may or may have not had direct involvement in the actual decision which gave rise to the conflict or lawsuit. This may have strategic advantages, but it may have disadvantages as well. Having the actual decision maker attend the meditation on behalf of a company, for example, can provide a number of advantages. First, it can communicate to the opposing party that the company is prepared to stand behind the individual. Second, assuming that this individual presents well, it can serve to personalize the company. Third, particularly in employment cases, it is often the case that the employee feels a need to vent during the mediation process. That cathartic process is facilitated and enhanced by the presence of the actual decision maker.
An equally challenging issue is deciding who will speak at the mediation. Mediators almost always afford counsel and their parties the opportunity to make an “opening statement” at the outset of mediation. This is a special moment in the mediation which should not be ignored or treated lightly. The opening statement can serve to not only frame the substantive issues but to set the overall tone for the mediation session. Just as importantly, an opening statement can have the very important effect of validating the mediation process and communicating that the parties are appearing in good faith. It is often the case that parties will never agree upon what actually transpired in connection with a particular dispute. This simple acknowledgment during an opening statement – particularly when coupled with the statement that reasonable people can agree to disagree respectfully on the facts and circumstances of a matter -- can often provide an atmosphere where candid discussions can take place without the harsh and angry tones that are usually attendant to an actual or threatened lawsuit. Attorneys need to counsel their clients to be careful about so called “admissions” as well as how to address potentially sensitive issues.
7. Master Mediation Etiquette.
Along the same lines, parties need to understand that the mediation is a process which often takes on a life of its own. Attorneys should remind their clients that in most circumstances a mediation has no fixed time period, and that the mediation process is a rare and, in fact, unique opportunity for the parties to craft their own resolution to their own problem. Parties should also be reminded that overzealous behavior, angry outbursts and personal attacks not only harden positions, but may serve to make it almost impossible to settle a case. It is important that participants conduct themselves professionally and respectively at all times. Parties should be encouraged to shake the hand of their opponent as well as the hand of the opposing counsel; not interrupt another individual when he/she is speaking; and to avoid sighs and other body language which communicates disgust or disapproval.
8. Be Prepared to Close the Deal.
Experienced mediators understand that they need to be prepared at mediation to reach an agreement in principle at the mediation. In this regard, attorneys should consider preparing a checklist of terms that they would expect to see included in a settlement agreement or, better still, a rough draft of an actual settlement agreement. This exercise will force the parties to think critically about what they want to achieve in a settlement. Counsel and the parties who come prepared to document any understanding that may be reached are much more likely to avoid the circumstance of “buyer’s remorse” which can prevent the culmination of an otherwise reasonable and acceptable deal.
In summary, it is no accident that participants who are most successful in mediation are the ones who have prepared wisely and effectively. Mediation is a unique and special opportunity in the life of a dispute (or lawsuit) which should be treated with great care and attention. Parties and counsel who carefully prepare for mediation can reasonably expect to see the results of their labors in the form of mutually agreeable resolutions which save thousands of dollars of litigation costs, prevent lost opportunities, and preserve relationships.
Marc R. Engel advises clients on employment issues, litigates and mediates employment and business disputes, and counsels companies and organizations on litigation avoidance strategies. He has been selected by the Circuit Court for Montgomery County to be on its approved list of mediators for civil litigation and employment matters. You may reach him at (301) 986-1300 and at firstname.lastname@example.org.