Published by Mediate.com in September 2008
While all good attorneys prepare intensely for arbitration or trial, it is a wonder that more fail to prepare better for mediation. As the legal community continues to use mediation as an effective case settlement tool, it is becoming clear that attorney preparation plays a vital role in achieving a favorable result. Whether dealing with hundreds of thousands or millions of dollars, shooting from the hip is too risky.
Various studies show that 95-97% of all cases settle before trial. In this legal climate, logic would dictate that attorneys should be investing significant time and resources in preparing for mediations. While money spent on a successful mediation can be relatively minuscule compared to the costs of trial, an unsuccessful or frustrating mediation can be a costly investment.
There are many facets to preparing effectively for mediation. Here are a few key ideas to think about in an effort to maximize your next settlement at mediation:
Find out if the mediator prefers a brief, an informal letter, a copy of the pleadings, or no advance information at all.
Ask colleagues about the mediator's style. Find out if this mediator tends to ask the clients to give an opening statement or prefers to hear from counsel. Ask if this mediator be trusted with an honest bottom line and confidential information.
Find out if your mediator is an expert negotiation strategist, or if the participants will need to lead the dance. Learn if this mediator will simply pound on both sides in caucus, or whether he or she will expect to evaluate the case's specific merits and pitfalls. All of this information can help to make counsel more effective with a mediator.
With larger or more sensitive cases, mediators often welcome phone calls from counsel explaining a case's particular challenges or subtleties in advance of the mediation. Sometimes counsel resist the gut instinct to do this, worrying about ex parte communication, but in mediation, such communication is not only allowed, it is an integral part of helping the mediator with key insights.
Ultimately, counsel must know the details of the case as if it were their own dispute. Counsel should write, or at least review, the briefs, if only to reinforce the case details in their own mind.
It is often advisable for attorneys to prepare a chronological event timeline as a guide during their opening statement.
Knowing the case and presenting it well makes the attorney appear sincere, honest, and knowledgeable, impressing the mediator and opposing counsel, resulting in more money in the client's pocket at the end of the day, keeping clients loyal and generating referrals.
If the case is not ripe for settlement, do not have the mediation. Taking into consideration the mediator's fees, client and counsel preparation time, brief writing, and the cost of the day to the client, it is sometimes wiser to pay a cancellation fee and postpone a mediation that is premature.
Few things hurt the attorney-client relationship more than a long, frustrating day spent in an unproductive mediation, disappointed by expectations of closure. Communicating with the mediator and opposing counsel can help to insure that all are ready, have what they need, and are coming prepared to make tough decisions about how they are willing to resolve the matter.
On the other hand, attorneys with agile clients who are prepared to make immediate decisions can have a very productive mediation by sharing information introduced during the mediation, considering it, and making solid settlement decisions. Especially in business and transactional disputes, where there are no adjusters involved, mediations can still bring closure even when discovery responses are still outstanding.
Counsel should review with the client what to cover or emphasize during an opening statement. It is inevitable that clients be evaluated as a potential witness, both by the mediator and opposing parties. This becomes more critical if the client has not yet been deposed. Attorneys who deal with mediation regularly can underestimate the discomfort these legal and quasi-legal proceedings can cause their clients. Prepare them in advance and they will be grateful.
Clients are too often mislead by having counsel ask them to develop a bottom line in advance of the mediation, rather than being properly prepared to evaluate new information and make decisions based upon the happenings of the mediation.
Clients also need to be prepared for the difficult nature of the mediation process. It is often hard on clients who begin the day with high expectations, and continue to be disappointed by the other side's subsequent offers, taking successive steps backward in compromise after compromise in route to a disappointing or "equally painful" final compromise. Clients who are prepared for the negotiation dance will be much more pleased with their representation when all is resolved.
In closing, while we do not address mediators as "Your Honor", that does not mean that counsel should approach a mediation with less preparation or strategic planning than they would in anticipation of a trial. After all, for most cases, mediation is "their day in court".
Lee Jay Berman, a mediator based in Southern California, is on the business and commercial, employment and construction-industry mediation panels of the American Arbitration Association, and is the new Director of "Mediating the Litigated Case", the flagship training program of Pepperdine Law School's Straus Institute for Dispute Resolution. He can be reached at email@example.com or (213) 383-0438.
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