Judge Meloni discusses how to initiate and prepare for a mediation in the second installment of the Alternative Dispute Mediation blog.
Initiating a Mediation
So you have a case that is ripe for mediation, but you are afraid to ask. Many lawyers, both new and experienced, are reluctant to suggest mediation to an adversary for fear that it will be perceived as a sign that their case is a weak one. It might, especially if the case is weak.
A key trait every trial lawyer should have is the ability to be persuasive. Sell your adversary on the idea that it is a pure business decision. Emphasize the areas where the parties are in agreement. For instance, if in a personal injury case there is no question of liability, and the only real question is the amount of damages, point out the logic of going to mediation.
Conversely, if liability is at issue but damages are not in question, it is an ideal time to have a neutral mediator evaluate the issue so that the parties would have a third party give a realistic view of the case's value. Sometimes a party has a distorted view of the value of their case and a frank discussion with an independent mediator can help close the gap between the parties.
Point out the advantages of mediation. Even if the parties have already incurred the expense of discovery, substantial cost savings can be had if the matter is successfully mediated, by avoiding having to bring liability and/or medical experts to court.
In addition to avoiding the cost of further litigation, the litigants would also be able to end the stress that goes along with attempting to resolve the dispute outside the courtroom door when a judge is pressuring the parties and threatening to have them pick a jury before lunch.
In essence, the way to dissuade your adversary from believing that your suggestion that the matter be mediated is a sign of weakness, is to highlight the strong valid reasons why the case would benefit from mediation.
There are cases where the parties will assert that they are too far apart to benefit from mediation. But this is the type of case that may benefit the most from mediation. The litigator should be mindful that most cases are settled before trial. They are resolved in part because the parties do not want to risk the uncertainty of trial so they begin to talk in earnest to settle the case. With the fear of the jury making the decision the parties in most cases find common ground. The disadvantage to the litigants in waiting until they are literally on the courthouse steps is that they are rushed to a settlement.
The only downside is that the mediation might not be successful, the parties would suffer a loss of time and cost of mediation, which would usually pale in comparison with the time and cost of a trial.
Preparation for a Mediation
All areas of dispute resolution whether it be mediation, arbitration or litigation require thorough preparation. It is a lesson taught in law school that follows us throughout our careers. An attorney must know his or her case and to the extent possible their adversaries.
The first step is to prepare the client. Make your client aware of the options, that is, litigation, arbitration or mediation. You should discuss that in litigation or arbitration someone else, a judge, arbitrator, or jury will be making the decisions. In mediation it is the parties who will determine the final resolution.
Make sure your client understands the facts and legal authority for their position as well as the contentions of the other party. The client should be able to separate their “needs” from their “wants.” He or she should be prepared to compromise, to be patient and keep an open mind.
If your client is going to speak they should be reminded not to exaggerate. Credibility is not only important to the mediator but in how the opposing party assesses your client.
Emotion plays a part in every dispute but antagonistic behavior will not help settle the matter. Clients should be counseled to maintain civility in their negotiations.
The Mediation Process
It is important that the attorney prepare himself or herself for the mediation process and explain it to the client. After a mediator has been selected there is usually an organizational conference either in person or by telephone to discuss scheduling and any issues that may need to be resolved prior to the mediation session. The parties must understand that the mediator will not decide any issues in the case, he or she will not be making decisions as to who is “right” or “wrong.”
It is extremely important that the person or persons with settlement authority be present at the mediation. If that person is not available to be present they must be immediately available at the time of the session by telephone or by another electronic communication device.
The Mediation Statement
A Mediation Statement is usually requested by the mediator prior to the session. The statement should provide the mediator with background on the dispute and what issues need to be resolved. The question of timing of the submissions and whether the parties should exchange the same with each other can be discussed at the organizational conference call.
The Joint Session
The Introduction – At the outset of the mediation session the mediator will generally have all the parties together. He or she may give a background about themselves and explain the purpose of mediation and their job as a neutral mediator. This is an effort to gain the trust and confidence of the parties and the attorneys.
The Opening Statement – Each attorney is asked to state their positions and sometimes the parties may want to contribute. The opening statements are helpful in identifying any common ground as well as unresolved issues. Sometimes parties may ask to skip the opening statements and go directly into private caucus. This may be because they each know the other’s position and feel that their Mediation Statement was sufficient to educate the mediator or that the parties have too much animosity.
Private Caucus – During these private meetings, the parties are encouraged to be candid, shrouded by the protection of confidentiality. The mediator can discuss the range of possible outcomes and develop settlement options. This is the part of the process that involves the mediator engaging in shuttle diplomacy, where he or she meets with each party individually trying to narrow down the areas of dispute to a final resolution.
Settlement Agreement – After a successful conclusion to the mediation a written agreement should be entered into memorializing the terms of the settlement. All critical elements should be included in the document so that there is no dispute as to what was agreed upon
We all know most cases settle, so no one should be reluctant to suggest mediation. Make your case for mediation by outlining how your case can achieve all the benefits of mediation. Rational adversaries can see that as well and will recognize it as beneficial to all parties. It becomes then not a sign of weakness but a common-sense way to proceed.
To have a successful mediation both the lawyer and his or her client must be prepared. They must know their case, have reasonable expectations, have patience and be willing to compromise. The lawyer’s prowess as a litigator must take a back seat to the “art of the deal.”
For more information, please contact Louis R. Meloni, J.S.C. (Ret.)
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.