You can do better at mediation

Prepare well and be ready to present your strongest case — don’t hold back

2009 April

[Ed. Note: This is the first of a two-part article. Look for Part 2 next month or at www.plaintiffmagazine.com.]

In recent years, I have encountered increasing resistance to the mediation format I was trained to follow that has always worked well for me. The primary recurring suggestion from participating counsel is that starting with a joint session is unnecessary or even counterproductive. Usually, I convince counsel that the open meeting is vitally important to success of the mediation. Sometimes I cannot get agreement and dispense with the open meeting only to convene one later when it becomes obvious, usually for purposes of time and cost efficiency, that a joint session is helpful.

This resistance to the open meeting prompted me to consider the characteristics of lawyers in cases I mediate who consistently obtain better settlements. What I have observed is that adherence to fundamental, common-sense considerations at each traditional step of the mediation process consistently yields better settlements.

Ethical commitment to early resolution

I submit without discussion that trial counsel have an ethical duty to shape their representation toward a time-and cost-efficient resolution of disputes. Counsel must therefore make every reasonable effort to know enough about each dispute to give sound and reliable settlement and trial advice. They should do so efficiently and earlier rather than later. This article assumes that trial counsel and clients have decided to make a good faith effort to settle the dispute through early mediation.

Preparing for successful mediation

There are three critical early steps to be taken: Convince your client to approach the process positively; Find out what you need to know to provide sound advice about trial and settlement; and Approach the mediation intending to make your best case.

Convince your client to approach mediation positively

The success rate for mediation is markedly higher when parties voluntarily agree to the process than when there is some element of coercion requiring mediation. If your client is committed to making the process work, the chances of success are much greater than if the client is just tolerating the process reluctantly or even unwillingly. Therefore, the first step to maximize success is to convince your client to proceed with an open, positive attitude.

This is often easier said than done. All of us as trial counsel have had clients who litigate as a “matter of principle.” Other clients want revenge – a pound of flesh, and preferably the red pulsating pound of flesh in the opponent’s chest cavity! Trial counsel need to move clients past emotionally distracting attitudes that divert energy from the goal of obtaining the best legally possible result.

What worked for me as trial counsel and now as a mediator is to keep the parties focused on the basic reasons to compromise:

•  A thoughtful and detailed analysis of the risks of loss at trial;

•  The cost of getting ready and then trying the case;

•  The inability to predict with accuracy what the other side may do or how the civil justice system will administer the case;

•  Uncontrollable delay, which is the insidious country cousin of cost; and

•  The stress of litigation.

Once the parties fully appreciate at least these basic hazards of trying the case, they are usually more willing to approach mediation with a positive attitude and a willingness to consider reasonable compromise.

Find out what you need to know

The standard of care for trial work has evolved in the past 15 or 20 years to require more formal discovery. Many cases will require extensive and expensive formal discovery absent settlement. However, experienced trial counsel can often inform themselves sufficiently to provide informed advice on trial and settlement without extensive formal discovery. This is especially true in document-intensive litigation when the documents themselves often reliably commit the parties to predictable positions. So how do you get what you need?

•  The first and obvious source of information is your client. Counsel should spend whatever time it takes to question not only “the boss” but also each person employed or retained by the client who has relevant information. Too often, counsel do not probe deeply enough to get all available information. This initial investment in time is crucial and should be done as soon as reasonably possible. Years ago I learned that the longtime administrative assistant to a busy president or CEO is often a gold mine of direct information and can locate paper or electronically stored documents and the key personnel who are likely knowledgeable. Contact with key people should be made personally by lead trial counsel.

•  Counsel who convince their clients to spend the money at the outset to retain an outside consultant on key issues consistently get a more reality-based assessment than those who wait and rely instead on in-house personnel. The problem is the human nature of denial. The client and key people involved in the activity that led to litigation almost always believe they acted appropriately. They are not objective and will, at least subconsciously, deny the possibility that they were involved in a bad situation. Clients resist early retention of outside consultants as an unnecessary expense. Counsel’s job is to convince them that it is pennywise and pound foolish to delay getting an independent and objective assessment.

•  The third often-productive source of early and relatively inexpensive information is the other parties to the litigation. I recommend what I have come to view as the Trial Lawyer’s Golden Rule: Do unto opposing trial counsel as you would have them do unto you. Lead off by offering information you know the other parties are entitled to obtain. Accept the possibility of a one-way street if the gesture does not immediately result in a reciprocal offer to exchange information in a civil, professional, non-combative and much less expensive fashion. In my experience trying cases and as a mediator, trial counsel that are confident enough to start with a cooperative attitude more often than not evoke similar cooperation. The potential savings in time and money can be immense.

•  There will be cases in which the other side does not reciprocate. In such cases, trial counsel may well have to initiate some minimal discovery to get missing information needed to give sound mediation advice. The temptation is often to engage in preliminary “paper discovery,” and, if the discovering party gets a legitimate professional response, such discovery should be relatively time and cost-efficient. However, what should be routine and innocuous “paper discovery” too often escalates into World War III with the wrong opposition and/or a law and motion judge unwilling to enforce discovery rights. In these cases, a short key deposition or two may be more productive and less expensive than “paper discovery.”

Decide to disclose your best case

This final pre-mediation consideration is less a preparatory step and more a tactical decision about your approach. The goal of mediation is to convince adverse parties that your case is strong and that they would be well advised to compromise sufficiently to resolve the dispute. Within the mediation process, you are protected by confidentiality, and nothing can be used against you if mediation fails to achieve settlement. Therefore, you should put your best case on the table.

The other side already knows much of what you know and certainly will be entitled to discover what you know. If your best case does not convince the other side to compromise, perhaps you need to reevaluate your own position. The upside is that your presentation will sufficiently impress the opposing decision makers to settle. Having mediated over 3,000 civil disputes, I am sure that there must have been isolated instances when holding back was the wise approach. However, I cannot now recall even a single such instance.

Assuming you have opted for a detailed disclosure, the traditional approach to mediation affords two major opportunities to convince the other side and to educate the mediator sufficiently to help you get the settlement you want. One major opportunity is the mediation brief and the other is the open or joint session with all of the decision makers in the same room.

The mediation brief

Almost without exception, when I am privileged to work with highly capable trial lawyers committed to a bona fide “good faith” effort to settle at mediation, I get a well-organized mediation brief comparable to some of the better trial briefs I have seen. There is usually a detailed factual presentation with page and line references to depositions and other documents. Multiple exhibits are relatively common. Unless the law is basic, better briefs include sophisticated legal analyses with citations to appropriate authorities.

In confirming the time and place for the mediation, I urge counsel to provide me with their briefs and to exchange them at least two or three working days before the date set for formal mediation to begin. In a complex multi-party case, I suggest an even earlier exchange. This is simply another application of the Trial Lawyer’s Golden Rule. You certainly want all the information you can get about the other party’s position, and you want it in time to assess it and consider what recommendations you can make to your client based on the other side’s presentation. Surely, the other side feels the same way.

Thus, I strongly suggest that you make a full disclosure as soon as reasonably possible. Even if you suspect that your opponent is at least generally aware of your position, assume that he or she is not. You should also assume your opponent will consider your position and will need time to inform and advise his or her client. Competent counsel will not act on new information without assessing it carefully. New information presented at the eleventh hour almost always causes delay and defers reasonable decision-making.

For the mediator, it does matter whether you provide your brief reasonably in advance as opposed to the last minute. Your job is to persuade the other side to compromise, and a major tool at your disposal is the mediator. So you need to be sure the mediator understands your position and is fully informed. The more ammunition you give the mediator, the stronger the arguments the mediator can make on your behalf.

Initial joint session

The second early opportunity for trial counsel to make the best case in mediation is at the initial joint session attended by all counsel, all clients, the clients’ decision makers and the mediator.

Reasons for conducting an initial joint session

At an American Arbitration Association mediation training in the mid-1980s, I was taught that mediation should begin with a joint meeting among all parties’ decision makers, counsel and the mediator. In that joint meeting, counsel for each party is expected to set forth the strongest position on all issues. Ideally, the presentation should be in the nature of an opening statement, non-argumentative and addressed to the mediator so that counsel for one party does not end up directly addressing another party or lawyer.

One important reason for having an initial joint meeting is that the parties can hear firsthand how their opponents view the dispute. Counsel should have advised their clients of the strengths and weaknesses of the case. However, honest perceptions of zealous advocates often differ drastically even when looking at the same evidence. Moreover, even if all clients are fully advised, it is important for the parties to hear the opposing views presented professionally and by capable, well-prepared counsel. A new appreciation of the reality of litigation inevitably results.

Another reason for a full exchange of views in a joint session is time and cost efficiency. I was taught and still follow the practice of elaborating in some detail on four major motivators for compromise that are always involved to some extent: risk of loss: litigation costs: delay and stress. Sharing this insight with all of the parties attending the joint meeting saves the time of repeating it in private caucuses as many times as there are parties. It also underscores the point that all parties are affected by these factors and all face similar decisions. The parties should then realize that they all share a common goal of dealing with the same hazards – even though the same hazards may affect each party differently.

Setting forth your client’s position directly in a joint session enables you to say it the way you want to say it. Although all experienced mediators are careful listeners, there is always risk that something will be lost when counsel advises the mediator in private session and counts on the mediator to convey the desired message to the other side. Counsel who say it themselves during the joint session reduce to zero the chance that something important will be lost in transmission. In addition, by spelling out your position in detail, you enable the mediator to reinforce your arguments when meeting privately with the opposition.

Finally, the combination of all of these reasons for the joint meeting is that the parties become engaged in the process from the outset. The chemistry is different when the clients hear the issues together. The stage is set for followup on all issues in the private sessions.

There is rarely a sound reason for not conducting an initial joint meeting

The reason I hear most often to forego an open meeting is that there are strong emotions and setting forth the positions of the parties will likely inflame and even be counterproductive. A related concern is that opposing counsel will offend one’s clients and cause them to retrench rather than approach mediation willing to consider reasonable compromise.

In my experience, there is little merit to these objections for several reasons. First, if the mediator takes control and requires a civil and non-inflammatory process, no one should be seriously offended. Second, volatility is part of litigation, and venting is not necessarily bad. Third, the mediator will be able to reinforce the point that no event in the litigation process is as benign as a mediation; if a party cannot endure mediation, that party needs to compromise and settle.

I believe that the only sound reason for a client not to attend an initial joint session is that doing so might impair his or her health. I have been convinced on occasion with elderly and/or otherwise infirm clients that even the relatively mild stress of a joint meeting might be harmful.

Whenever I confer with other mediators or attend mediation training, there is unanimous and strong agreement that the initial joint session is critically important and should not be eliminated except in extreme and rare circumstances. I continue to start with such a meeting even if there has been an earlier session or a failed Mandatory Settlement Conference. At a minimum, it is easier to share perceptions of the parties in a single open session concerning whatever has transpired since the previous session.

At a minimum, counsel should give a detailed and thoughtful opening statement

One of the most successful lawyers in the Sacramento region presents imaginative PowerPoint presentations in virtually every case I have mediated with him, and I am sure that he does the same thing with other mediators. He outlines the entire case logically. He supports factual assertions with excerpts from deposition testimony, excerpts of other documentary evidence, photographs and graphic artistry. In doing so, he provides detail needed for thorough analyses by decision makers. Perhaps more importantly, he sends the message that he is ready to try the case. Whether one goes to this extreme, counsel should be prepared to lay out the case in an opening statement.

Involving clients directly in the joint session is another question

I try to encourage counsel privately before the joint session to invite their clients to speak up in the joint session. Counsel sometimes object, usually because they fear the client will not make a good impression, and sometimes because they fear the stress will be too great. The more successful lawyers prepare their clients and invite them to speak on one or more issues. In addition to giving the opposition a glimpse of the client’s personality, it enables the client to be more invested in the mediation process.