No. 8 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make in Mediations

David K. Taylor | BuildSmart | July 3, 2019

This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.

Number 8: Failing to Prepare the Client and Not Having a Plan

How experienced is your client representative? If she’s an in-house counsel who has attended scores of mediations, there may not be a need for much preparation, other than to make sure she has the authority to settle and understands the dispute and the issues. But if the client has limited experience, and this is a “bet the business” case, counsel MUST spend time (and that means in person, not via email or calls) to explain the process and to try to manage the client’s expectations. I have had clients think that mediation was a trial and were furious at their counsel for not “trying” the case during the mediation. The definition of “settlement”: No one is happy. The real world applies. I have yet to walk into the room of a party after a few sessions and the client say, “I now realize I was wrong; here’s a check; you are the greatest mediator in the world.”

The goal of any mediation is not to “win” but to resolve the dispute. What can your client “live with?” Talk with the client before the mediation about all possible outcomes, which can include losing at trial (even though you are, of course, the best lawyer in the world). Have a plan going into a mediation, but anticipate the need for some flexibility in case something new is revealed by the opposition or the client, such as telling the lawyer at the mediation (it’s happened more than once), “By the way, I forgot to tell you that I fired our primary fact witness last week for theft, and she hates our guts.”

Be realistic about the consequences of not getting a deal, especially future legal fees, expenses and the impact on your client’s business (including how much time the client’s key employees are going to have to spend on the case). It is amazing how many times I ask a party/counsel what their best and worse case scenarios are, including estimated legal fees/expenses. I often get a blank look. I then have to estimate legal fees and expenses through trial, and no matter what the counsel’s hourly rate is, the final number can put a client on the floor.

To be clear, great mediation advocacy is not the most important element in getting a deal done; pre-mediation planning is equally important.

Read numbers 9 and 10 on the list.

No. 9 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make in Mediations

David K. Taylor | BuildSmart | June 10,2019

This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.

No. 9: Not Having a Pre-mediation Call With the Other Lawyer and the Mediator

So, you have done your research and feel comfortable about the jointly selected mediator. You have an agreed date for mediation. Do you then just send in the confidential mediation statement and show up on the date? No.

Set up a call with the mediator (many good mediators insist) and opposing counsel and talk through the many issues that can derail a mediation. Consider the following, all of which you could address in a pre-mediation counsel conference call with the mediator.

Do you need information or documents from the other side? It can infuriate mediators when, in the middle of a mediation, they hear one side use an excuse that it does not have some information (or a document) necessary to make a decision and the other side does not have immediate access to such documents.

Do you agree to exchange all or some parts of the mediation statement? Discuss with opposing counsel what you plan to do and what you expect from the opposition.

It is also crucial to know who will attend. If the party representatives hate each other or you know that the other representative is not the decision-maker and may be covering himself because he screwed up the deal, a pre-mediation call can be essential. If insurance is involved, will the insurance adjuster (where the money will be coming from) be present? It is a bad way to start off a mediation when the lawyer shows up without the insured (who may not care because he’s not paying for the defense) or without the adjuster (who has 235 other cases) but whom the lawyer promises will be “available by phone” on the West Coast (but then disappears late in the afternoon when that side needs some additional authority to get the deal done).

The lesson is that the more you learn from a pre-mediation call with the mediator and counsel, the more time and attention you can devote to the real factual and legal issues in dispute during the actual mediation.

To be clear, great mediation advocacy is not the most important element in getting a deal done, but it can be a major factor.

Hey Siri, Why Did You Settle That Case Without Me Signing?

Matthew DeVries | Burr & Forman | June 4, 2019

Although it was a summary order with no precedential effect, the Second Circuit held in In re: Lehman Brothers Holdings, Inc. that an exchange of emails with a mediator can constitute a binding settlement, even if the parties never signed a written agreement.  While the case is certainly interesting and the holding appears to be novel, it appears consistent with traditional contract law principles.

In Lehman Brothers, there was a mediation between Lehman and an individual defendant.  The mediator sent Lehman and the defendant an email confirming that they had accepted his proposal and agreed on the amount of a payment in settlement of Lehman’s claim against that defendant. Lehman then sent the defendant the draft of a written settlement agreement. According to the defendant, the agreement contained additional terms that had never been discussed, much less agreed upon in mediation, such as the timing and manner of payment, the identity of the parties to the settlement, the scope of releases, and other terms.  Subsequently, the defendant requested changes in the agreement to which Lehman agreed.  Finally, the record contained evidence that defendant’s counsel sent Lehman an email saying its client would sign the written agreement as revised.

The question before the court was “whether the parties intended to be bound [to a settlement] in the absence of a document executed by both sides” by considering:

(1) whether there has been an express reservation of the right not to be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract usually committed to writing.

Altough two factors weighed in favor of an agreement and two factors weighed against and agreement, the Second Circuit ultimately held that the “balance tips in favor of finding an intention to be bound.” It is not clear whether the appeals court would have found a binding agreement had the defendant not later said it would sign the settlement. However, the appeals court focused on the original email exchange when the mediator notified the parties that they had agreed on the settlement amount.

Lesson learned: Words matter, but written words matter more!

Court Enforces Contractual Agreement for Mediation Before Filing Lawsuit

Gregory M. Boucher | Construction Industry Counselor | May 24, 2019

Construction contracts often contain agreements requiring mediation before a party may file a lawsuit.  However, a party may not want to wait through the mediation process and instead may prefer to go straight to a lawsuit.  Given that mediation is not binding and does not guarantee a resolution, can a party ignore a contractual agreement to mediate and instead go right to litigation?  A recent Kentucky federal court decision said no, a party cannot ignore a previous contractual agreement to mediate. See Mitsui Mumitomo Insurance USA, Inc. v.  Denham-Blythe Company Inc., et al., No. 5:18-CV-152-JHM, 2019 WL 1938791 (E.D. Ky. May 1, 2019).  

In Mitsui, an owner and design-builder entered into an AIA A141-2004 construction contract that contained several provisions designed to avoid litigation: an initial decision maker, mediation, and then arbitration (in that order).  Because the parties failed to identify an initial decision maker, the design-builder argued that none of the ADR provisions applied and filed a lawsuit in lieu of mediation or arbitration.  The Mitsui court ruled that the lack of an initial decision maker did not invalidate the parties’ agreement for mediation and arbitration, and, as a result, dismissed the lawsuit.   

This case is a reminder for parties to a construction contract to give careful consideration to a contract’s ADR and other dispute resolution provisions before signing a contract and to closely review a contract’s dispute resolution provisions before filing a lawsuit.

The Top 10 Horrible, Terrible No Good Mistakes Lawyers Make in Construction Mediations: #10

David Taylor | Bradley Arant Boult Cummings LLP | May 14, 2019

Effective representation of clients in construction mediations takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal. Over the years, I have compiled a list of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during, and after mediations in which I was the mediator. Below please find No. 10, and look for #’s 1-9 in future blog posts!

Number 10: Mediating Too Early or Too Late

Every dispute is different.  There are no firm rules as to when mediation should be considered. If the parties have a history, are in an ongoing relationship, will deal with each other in the future; and the legal fees/expenses will be substantial, it may make sense to try to set up an “early” mediation, even prior to the filing of a lawsuit. Sometimes the contract’s ADR clause requires mediation prior to litigation/arbitration. While those clauses can be waived, the issue is always whether the parties/counsel have enough information about the dispute to make good business decisions about settlement. Many times I have heard counsel say “I will be able to get an expert to support our claim,” which is not very persuasive to the other side when it is an expert-driven dispute. Sometimes there is a real concern that “final” offers made in an early mediation become sticking points for future settlement discussions. Early mediations can sometimes cause more problems, and make the parties madder at each other, especially with ego-driven clients (and yes, lawyers!). I have found that an early mediation is more likely to work is if there is a good working relationship between the lawyers who, working with an experienced mediator, can help manage the entire process (and their clients) to try to get an acceptable settlement early in the dispute.

What about “late” mediations just prior to trial? Will the parties agree to postpone a trial and stop the preparation process for a late mediation (of course, the Judge has to approve as well)? There are practical issues involved, such as finding a capable mediator at the last second and setting aside a full day (or longer) for mediation with trial counsel who have been furiously prepping for trial and who probably believe that the request is a stall tactic. My general experience is that since both sides know every inch of the other side’s case immediately prior to trial, if there is to be a last minute settlement, including during a trial, that can best accomplished between the parties/counsel without a mediator’s involvement.

So, the preferred timing for mediation is most likely sometime between early and late: a time when the parties know enough about the dispute to make well reasoned settlement decisions but not so late that the entire investment necessary for trial has already been made.