The Altered Landscape of Mediation

Rebekah Ratliff | The CLM

COVID-19 is driving change. Why some of it may be here to stay

As claims professionals, we start the dispute-resolution process by adjusting losses. We consider the insurance policy contract as well as state and federal laws when making decisions on what is owed and all factors that influence settlement. The claims process can end by settlement in negotiations, ADR, or trial.

With COVID-19 persisting, all processes are under examination and reconsideration for how resolution may be achieved. Assessing the possibilities under new constraints is an evolving task. The “how” of protecting the sanctity of the confidential mediation process has been under scrutiny since it became apparent that virtual mediations, in some form, are here to stay. And while concerns still seem to outweigh the benefits, the results are almost identical to in-person hearings. There are some considerations that I can share from the perspectives of a former commercial adjuster and a mediator.

With regards to observation, the ability to see and monitor behaviors is not the same virtually. As a matter of fact, it is virtually (pun intended) impossible to adequately proctor the mediation environment as the adjuster and as the mediator. In-person mediation hearings allow for a “read” of the room on the part of the adjuster, a valuable advantage when assessing the case up close, especially if trial is imminent. If the plaintiff has claimed certain disabilities and inabilities, a good look at her at the mediation table may shed some light on if truth or fiction is being peddled. The parties get their stories told “in color” versus black and white. An adjuster has the opportunity to consider any previous unknowns that may change her evaluation, up or down.

Additionally, plaintiffs want their “moment in the sun.” In some cases, it is the story-time sharing in the joint session opening statements. The plaintiff may feel that moment is diminished a little by an abbreviated online mediation process, especially if the case does not settle. Also, the apology that often starts the healing process is more heartfelt in person. Although an online apology is still an apology, there is something about being there to look eye to eye when those important words are said.

From my viewpoint, the biggest benefit of in-person mediations is the human touch—the ability and skill in discerning the human condition distinguishes a talented dispute resolution professional from the common-variety colleague. I have been able to influence communications and concessions by just bringing my humanness into the room. The power of authentic interpersonal connection is difficult to replicate virtually. The tenet of trust for a mediator is a make-or-break skill.

Of course, COVID-19 has caused us to reimagine mediation in the interest of public safety. The process requires more work, but it has its benefits. Mediation is a great option given the indefinitely delayed trial calendars and backlogged caseloads. It is also a golden opportunity for parties to take matters into their own hands and not leave the fate of their cases in the hands of six or 12 strangers. Mediation participants can attend from virtually anywhere, and parties who suffer from disabilities can participate from the comfort of their own homes without having to deal with travel or traffic. This arguably puts them in a better state of mind for the mediation process.

Overcoming Challenges

Pre-hearing agreements need to stipulate that recording the hearing is prohibited. It has been suggested that the parties be asked to verbally confirm they are in a private, secure location on the day of virtual mediation and notify the mediator of any changes. The truth is, in person you could not guarantee that participants were in compliance with the no-recording policy. No one was checking under the table for cellphone recording noncompliance.

Managing the virtual platforms can be challenging from a tech perspective and from the host’s perspective. For example, it’s important to let everyone in from the waiting room simultaneously so that no one party feels slighted. This and other issues are being examined to determine how to efficiently run mediation hearings without breaching confidentiality. Zoom worked out the “bombing” issues that were taking place in early 2020, and it’s now best practice to “lock” the meeting. Be aware that using a third party to manage technology is a confidentiality breach that could cause evidentiary exclusion issues regarding ADR communications and potentially jeopardize subsequent hearing exemptions that a mediator usually enjoys.

There are various scenarios for attendance at online mediations. Clients may attend the hearing in person, in their lawyer’s office, in the same building but a different room, or from a different laptop. We have had to get creative with the sharing and signing of documents (thank goodness for Dropbox and DocuSign).

Not every case is appropriate for a virtual environment, so hybrid hearings are under consideration. It is interesting that, while the bedrock of mediation is compromise, when the process itself requires recalibration and reconsideration, it can be difficult for everyone to make concessions. The reality of not knowing what the new normal will look like raises the question: How will the future of ADR look when the vaccine settles? One thing is for sure, the future of mediation is compromised. 

Annoy the Mediator at Your Own Risk: Negotiation Tactics and Missteps to Avoid

David S. Ross, Esq. | JAMS

Rule number one in any mediation? Don’t tick off the mediator.

First and foremost, effective mediation advocates collaborate with their mediators to prioritize and advance their client’s interests. Mediators help people resolve disputes that they can’t resolve themselves, organizing and managing a negotiation process that usually results in a settlement or deal. When lawyers (or their clients) negotiate in unproductive ways—making it harder than it already is to resolve a thorny dispute—the process becomes less efficient, less productive, less enjoyable and more likely to reach an impasse.

Second, according to social science research, people work better with people they like and trust. Robert Cialdini, an expert on the science of persuasion and influence, writes that we are more likely to be influenced by and comply with people we like. So, when you ask the mediator to help you achieve a certain a goal at the end of a long day, you’ll be better positioned to influence her—and your adversary—if you haven’t breached anyone’s trust or otherwise deeply disrupted the mediation process.

As Perry Rogers, NBA Hall of Famer Shaquille O’Neal’s agent, once said: “My negotiating advice to getting a deal done is to be likeable. Being obnoxious is easy.”

Mediators’ Top Pet Peeves

Mediators are preternaturally patient people who remain calm and focused in complicated, emotionally charged situations. But here’s a little secret—even Master Mediators have pet peeves.

So, what annoys or aggravates mediators the most?

I presented each Master Mediator with my “Top Ten List of Unhelpful Behaviors” that make the mediation process less enjoyable, less efficient and less productive. When parties commit too many of these “process no-no’s”—often because they think a particular behavior provides a negotiating advantage—they risk alienating the mediator and the other side, leading to suboptimal outcomes or, worst-case scenario, an irreversible impasse.

The best mediators remain calm and decisive as they identify and address process roadblocks, such as strong personalities or irrational intransigence. Nonetheless, we all have our triggers.

So, I asked each Master Mediator to rank each unhelpful behavior on a 1-10 scale, from least to most problematic. Below I share the Top Three Unhelpful Behaviors.

Unhelpful BehaviorsHow Annoying? 1 = not at all: 10 = very
#1 Important Person With Authority Is “Unreachable”8.50
#2 Hyper-Aggressive Advocate7.25
#3 Lack of Preparation6.83

#1 Important Person With Authority Is “Unreachable”

The Master Mediators resoundingly agreed that not having a person with authority at the mediation session, or easily reachable, presents the biggest obstacle to settlement. To cement any negotiated deal, the mediator must secure a yes from the people with the power to authorize a yes. That’s why good mediators always confirm—sometimes twice—that all necessary decision makers, with appropriate levels of authority, will attend the mediation session or, at a minimum, be reachable by phone or email.

Sometimes, a decision-maker suddenly becomes unavailable for legitimate reasons. Many years ago, I mediated a case where the plaintiff had to leave the mediation to take her son to the hospital. Obviously, the defendant understood and agreed to reconvene the next day.

More often, however, one side announces mid-mediation that a key decision-maker “can’t be reached,” making it impossible to close an achievable deal. These frustrating situations usually represent either a failure to anticipate the participant’s unavailability or a purposeful negotiation tactic designed to scuttle or delay settlement in an effort to secure more favorable deal terms at a later date.

As one usually diplomatic Master Mediator bluntly said, “It’s not just annoying. It’s actually super-annoying.” And it’s super-annoying because the person’s unavailability makes settlement that day impossible, creating an unnecessary impasse that can prove hard to overcome once mediation momentumis lost.

#2 Hyper-Aggressive Advocate

The Master Mediators dislike hyper-aggressive negotiating behaviors because they undermine a principled mediation process by making it less collaborative, less efficient and less productive. In fact, one Master Mediator described hyper-aggressive advocacy as “the single most problematic dynamic in any mediation,” especially when it escalates late in the day. Even the outlier who said that she “can usually work [her] way out of this situation” acknowledged that overly aggressive behavior “can, in some situations, present a very serious problem.”

The Master Mediators shared different reasons for their aversion to hyper-aggressive advocates. One said, “Hyper-aggressive belligerence annoys me personally. I rated it high because it usually goes along with trying to prevent me from talking directly to parties.” Another observed that such tactics are particularly problematic because they often signal a lack of genuine interest in settlement. One Master Mediators lamented that managing unproductive negotiating antics requires energy and focus better spent on more productive work, like finding creative solutions that work for all the parties.

To be clear, effective mediation advocates should negotiate assertively to get the best possible deal for their clients. Experienced advocates execute negotiating strategies designed to meet their client’s goals, but they adjust those goals as they learn new information and digest mediator feedback.

The Master Mediators respect strong advocacy but become concerned when negotiation tactics become too aggressive, alienating other mediation participants and unsettling the process. Such tactics include wildly high opening offers (or wildly low counteroffers) coupled with irrational intransigence. Other unhelpful behaviors include hardball tactics such as stonewalling—refusing to make a counteroffer or refusing to share relevant and discoverable information, for example—intentionally mischaracterizing prior conversations and making “exploding offers” that expire after unreasonably short deadlines.

When advocates unrelentingly persist in using these tactics, they alienate the people across the table by sowing dislike and distrust. Mediators work hard to establish trust between the parties. As the saying goes, “Trust is gained in drops but lost in buckets.”

Smart advocates know when to dial back unproductive negotiating behavior so as not to risk cratering the process.

#3 Lack of Preparation

I was surprised how many Master Mediators consider inadequate preparation to be a prevalent problem. As one put it, “Unfortunately, poor preparation is not unusual.” Poor preparation annoys mediators because it slows down the mediation process, makes it more difficult to conduct a principled and merit-based discussion about settlement value and limits opportunities to identify creative solutions. In other words, it undermines the core goals of any mediation.

Fully preparing for mediation is a no-brainer. While advocates cannot control all aspects of the mediation process, lawyers (and their clients) can almost always control how much they prepare.

Of course, it’s worth exploring what constitutes effective preparation. First, take the time to explain to your client, especially first-timers, how the mediation process works, including the role of the mediator. Doing so will reduce the deep anxiety people feel as they try to resolve high-stakes conflicts that involve money, identity and strong emotions.

Second, ensure that you (and your client) identify and acknowledge the weaknesses in your legal position and the risks and costs of not settling. Lawyers should be ready to address legitimate questions presented by opposing counsel or the mediator. To maintain credibility, they should be equally ready to admit weaknesses in their positions. Too many lawyers overestimate their ability to wing it when pressed to justify how they value their case or how they will address clear litigation risks.

Third, talk with your client about prioritizing their goals. People make better choices when they have time for calm reflection and don’t feel pressured to make hard decisions quickly and under pressure. I don’t endorse entering mediation with an immovable bottom line mainly because you’re bound to learn new information or hear new perspectives—from the other side or from the mediator—that will shift your view of settlement value. Having a clear understanding of a realistic settlement range, however, makes good sense.

To ensure a more principled and more productive mediation session, follow the advice given by Scar in his solo song in “The Lion King”: Be Prepared!

In my next post, I will explore several more top mediator concerns, so stay tuned!

Addressing Confirmation Bias in Mediation

Patricia H. Thompson | Forum on Construction Law

Confirmation bias is the innate human tendency to look for and interpret information consistent with one’s existing beliefs and to ignore inconsistent information, even if that information is demonstrably true. A trial witness’ devastating demonstration of confirmation bias is the climax of the recent, popular HBO mini-series, The Undoing. While exposing the harm caused by a party’s failure to face damaging facts makes excellent court room drama, in real life, advocates have the ethical obligation to do their best to ensure their clients fully appreciate the risks inherent in their legal dispute well in advance of trial.

However, adverse risk analysis also can be challenging for attorneys, due to their natural confidence in their own skills and a proven tendency of trial lawyers to be unrealistically optimistic about their likely success. While such overconfidence may be natural, overconfidence does not guarantee success. A recent article in the Miami-Dade, Florida Daily Business Review offered a stark example of seasoned trial counsel’s failure to accurately predict the outcome of litigation. Pretrial, the defendant’s “gold standard defense” team estimated the worst-case damage estimate at $1.5 million. The jury disagreed, awarding the plaintiff $72.9 million.

Outside counsel’s preparation of a client for mediation should be a perfect opportunity to ensure the client appreciates the risks of proceeding to trial, especially any risks the client might not welcome or want to credit as being inconsistent with its opinion as to the validity of its claims or defenses.  One way for both counsel and a client to more accurately assess litigation risk in the face of inherent biases is to jointly engage in a formal, disciplined identification of those aspects of the case about which the parties and counsel have little control, and to assess the consequences if these risks do not proceed as hoped.

Such considerations will vary, but might include: 

Jury issues such as:

• Undisclosed juror bias or cultural considerations or the possibility of not seating a jury with the sophistication and objectivity to resolve complex or emotionally charged issues, especially given the limited number of pre-emptory strikes.

• In a lengthy trial, jurors may stop listening to the defense, because they already believe the plaintiff’s case (which is another example of the risk of confirmation bias) – or the reverse: that the jury will only remember the witnesses they heard most recently.

• The possibility that a juror will research the case or issues on the Internet and, based on adverse publicity, reach a decision unrelated to the trial evidence?

Evidentiary issues such as:

• Losing an important in limine motion. 

• The possibility that the client’s fact or expert witnesses may unexpectedly under-perform, become unavailable, or otherwise are compromised by undisclosed testimony in other cases or unforeseen credibility lapses.

• Unexpectedly overperforming opposing witnesses.

• The difficulty and possibly boring nature of having to present evidence in a lengthy, virtual hearing.

• The risk in multi-party cases, such as construction disputes, that parties necessary to your client’s case may settle before or at trial, leaving your client to present its case alone.

Judicial issues, including:

• Judicial bias, undisclosed or not.

• Unfavorable jury instructions or special verdict form.

Post-trial issues:

• The risk of bad publicity.

• The financial risk of an adverse judgment on other client agreements or relationships.

• Uncollectability of your client’s anticipated, successful money judgment or fee award.

• Unfavorable result on appeal, including the cost of retrial.

Mediation offers a unique challenge to outside counsel to provide their clients the valuable and, indeed, indispensable service of rationally identifying and evaluating the merits and risks of their side of a dispute. Undergoing a disciplined process of identifying and analyzing messy and unwelcome facts as part of mediation preparation should help clients face unpleasant truths. Only then can the client feel confident in deciding whether the other side’s settlement offer really is a better alternative to trial.

Virtual Mediation – How Do I Make It Work For Me

Adrian L. Bastianelli, III and Jennifer Harris | Peckar & Abramson

Mediation took the construction industry by storm in the late 1980’s and has become a staple for resolving construction claims. Today, most construction contracts, including the ConsensusDocs, require mediation as a condition precedent to binding dispute resolution, whether it be arbitration or litigation. As a result, many construction executives have spent long hours sitting in conference rooms trying to reach resolution with their counterpart through mediation in order to avoid the alternative – costly arbitration or litigation that often produces an unsatisfactory result.

While many businesses have foreclosed the possibility of meeting in person due to the COVID-19 pandemic, the contractual requirements for mediation remain.  Thus, in most cases, in-person or live mediation is no longer an option; however, attorneys and mediators have developed a virtual process to replace the live process. With a new process comes many questions: Does the virtual process work? What are the best practices and pitfalls for virtual mediation? Will virtual mediation continue when COVID-19 fades away? How do I make virtual mediation work for me? The answers to these questions and more are discussed below.

The Virtual Mediation Format

There are numerous platforms that can be used for virtual mediation, including Skype, Google Meet, WebEx, Zoom, and others. Of these, Zoom is the preferred platform for mediation because it provides breakout rooms for caucus sessions and is easy to use. Regardless of the platform you select for the mediation, you and your company’s participants need to understand how it works for mediation and hold a practice session before you go online with the mediator.

In a live two-party mediation, there are typically three conference rooms — one for the parties to use for joint sessions, plus one each for the parties to use for private caucus sessions with their team and the mediator. This format does not change in a virtual mediation, except, instead of three physical rooms, there are three breakout rooms that are used for the joint and caucus sessions.

In a live mediation, the mediator often engages in informal chats in the hallway with the decision-makers or counsel, and the decision-makers and counsel do the same with each other. These informal discussions can be more productive than all the posturing in the formal meetings. Of course, there is no hallway on Zoom, however, there are unlimited breakout rooms where a meeting can be held separately with counsel or a decision-maker. The difference is that the informal hallway chat now becomes a formal meeting that must be arranged in a separate breakout room, which may not be as productive as the informal hallway discussion. In any event, you need to beware of the availability of the extra breakout rooms for side meetings with the mediator or your counterpart and use them productively.

When considering which platform to use, you should consider the security of the platform and its compatibility with your company’s operating system. As many contractors are aware, Zoom had security issues at the forefront of the COVID-19 crisis. Today, it appears that Zoom has corrected these issues and implemented protections such as password protection, the ability to lock meetings and waiting rooms. Regardless, you should work with your IT personnel to ensure that security concerns are addressed and that they will be able to successfully live-stream the mediation on the selected platform.

The Pre-Mediation Phase

Probably the most important change in construction mediation over the years has been the development of a robust pre-mediation phase. The pre-mediation session between the mediator, decision-maker, and counsel before the day of the formal mediation often is critical to the mediation’s success. Many lawyers and parties, however, do not recognize its importance and treat pre-mediation only as an opportunity for a brief chat with the mediator for which no preparation is necessary.  While it is an opportunity to talk to the mediator in an informal setting, it is much more, including an opportunity to educate and arm the mediator with your story, obtain documents that you need for the mediation, discover potential roadblocks to settlement, uncover adverse arguments and issues that you have not recognized, discuss people problems, evaluate nonmonetary solutions, plan for ways to break impasse when it occurs, and establish a strategy to achieve a settlement.  You should never underestimate the importance of the pre-mediation session and come unprepared.

Going virtual has made the pre-mediation phase far more productive than it was prior to the use of Zoom and other platforms.  No longer is it a short phone conference between counsel and the mediator. Now, in the pre-mediation session, the mediator will be looking you and your counsel in the eye over Zoom and beginning the mediation with an in-depth discussion of the issues, roadblocks, strategies, and other subjects, while at the same time beginning to develop a personal relationship with you.  By the time you arrive at the formal mediation, the parties and mediators will be well along in the process – at the 9:00 am start of the virtual mediation, the parties will be at the 2:00 pm point in the normal live mediation.  You must understand and take advantage of this difference or be left behind.

If your mediator does not initiate a robust virtual pre-mediation session, then you should request one. It is your opportunity to set the table for success.

The Joint Opening Session

While the pre-mediation session has become more robust, the joint opening session has been reduced, if not eliminated entirely, particularly in some parts of the country.  In addition, the robust pre-mediation session has in some cases either replaced or lessened the need for the joint opening session. However, there still is a benefit of a joint opening session. Often the decision-maker for the other party has not heard your arguments articulated as convincingly as you can make them or has not heard what was said by counsel who may have sugar coated or understated the arguments. And, you may not have heard the other parties’ arguments presented in their most stark terms.  The opening session is your chance to talk directly to the other decision-maker and for you to hear the other party’s best arguments.

The joint session may be the only time you see your counterpart in a virtual mediation. In a live mediation, you will necessarily encounter your counterpart in the hallway or the coffee room, where you can have informal conversations and interactions, judge your counterpart’s demeanor, and further your personal relationship. Not so in a virtual mediation. If you don’t see your counterpart in the joint session, then you may not be together again in the virtual mediation unless one of you or the mediator formally requests a side session in a breakout room. So, take the opportunity in the virtual mediation to sit in an opening session and look your counterpart in the eye before you break up and move into cyberspace.

One other helpful hint is to take advantage of demonstrative exhibits in the opening session of a virtual mediation.  In a live mediation, the exhibit is flashed on a screen at the end of the room and often ignored by all.  In contrast, in a virtual mediation, the exhibit is on the computer screen directly in front of the other decision-maker for an extended time, making it far more likely that the decision-maker will take the time to review it in detail. A critical photograph, contract clause, or letter may have a far greater impact under these circumstances.

The Caucus Session and Closing

After the joint session, the parties retreat to their separate caucus rooms. The caucus sessions are the heart and soul of the mediation – where the heavy lifting on settlement occurs and closing is achieved.

In a live mediation, the mediator spends the day moving between caucus rooms, meeting the parties and counsel. During this time, the mediator develops a relationship with the decision-makers and counsel, observes their body language, demonstrates the mediator’s knowledge and understanding of the dispute, and begins developing trust. The mediator also listens carefully and observes the parties’ body language during the caucus sessions to discover what is actually important to them – unearthing their interests, less so their positions. When the time comes, the mediator uses the relationships and knowledge garnered in the caucus sessions combined with tried and true closing procedures to help the parties reach a settlement.

So, can the mediator be as effective in caucus sessions through a video camera as in face to face sessions? The answer probably is no. However, the mediator can still be effective in helping the parties reach a settlement in a virtual setting, it may just require more help from you and more work and time to accomplish.

Your input must begin in the virtual pre-mediation phase. You need to make sure that the mediator is well on the way to settlement before the formal mediation begins. Virtual communication, and therefore virtual mediation, is more difficult than when it is face-to-face, and it takes longer to effectively communicate the same information and achieve the same results. So, start early and reduce what must be accomplished in the formal mediation session.

You should limit the number of people that you bring to the mediation. You don’t need a room full of people available to answer any possible question like you might in a live mediation because your people are only a Zoom invite away from joining the virtual mediation. The more manageable group gives you more individual time with the mediator and removes the internal arguing and second guessing that goes on in a room full of people.

There is another reason that live mediations tend to close and do so at the end of the day. The parties have invested time and committed resources trying to settle. In a live mediation, everyone is about to leave to catch an airplane or at least go home and probably will not be available to recommence the live mediation for some time because they have a busy schedule and have moved on to the next project. The parties typically want to close before this happens and will often stay late into the evening to achieve that settlement. The dynamics are not the same in the virtual world.  Many times the parties are at home, and if settlement does not occur, they will simply move to another room to have dinner or a drink. The end-of-day pressure point may not be as effective in that situation.  However, the decision-makers and counsel likely will be in the same place the next day to continue the mediation. It is easier to get back together quickly for another day of virtual mediation and there is no cost to do so. This is a real change that you need to recognize in your preparation and negotiations.

Conclusion

So, what are the answers to the questions posed in the second paragraph above? Yes, virtual mediation works. Those cases that should clearly settle will settle virtually, while those that clearly shouldn’t settle, won’t. Those cases in the middle of the continuum, where settlement is dependent on the mediator’s ability to develop a personal relationship with the parties and to use the mediator’s personal charisma or apply pressure, are less likely to settle in the virtual forum than they would have in a live mediation.

Virtual mediation, however, is much less expensive and easier to fit into busy schedules. It is often hard to get the insurance carrier representative to the live mediation. That is not as true in a virtual mediation. Your experts and jobsite personnel are a click away. In addition, it is easier to reconvene for a second or subsequent day.

Virtual mediation, either in whole or in part, likely will stick around after the impacts resulting from COVID-19 subside. At a minimum, the virtual pre-mediation phase is a substantial upgrade over the old telephone call with counsel and likely will be the standard even if the formal mediation reverts to being live.

The parties will weigh the size of the claim, cost factors such as legal and expert fees, travel time, the need for personal relationships to close, and the ability to schedule the mediation to decide which mediations should be done virtually and which should be done in-person. The second session of mediation after relationships have been developed, information exchanged, and negotiations progressed, probably will be done virtually in most cases. Small mediations almost always will be done virtually.

Ultimately, yes, live and virtual mediations are different – but that does not mean that you should refrain from engaging in the dispute resolution process. A virtual mediation may be exactly what is needed to get a dispute resolved.

Mediation – Best Practices

Kent B. Scott | Babcock, Scott & Babcock

Corporate counsel, as well as outside trial counsel, have increasingly embraced mediation to resolve disputes.  Many companies now incorporate mediation as part of their standard policies, procedures and documentation.  Many court rules require mediation or some form of alternative dispute resolution before a case goes to trial.  The reasons for this are obvious: mediation works. 

Some Preliminary Thoughts

Many litigators still do not appreciate the subtleties and full range of the mediation process.   They view it as a competition for the heart and mind of the mediator, thinking if they can persuade the mediator to their point of view through effective legal argument, the mediator will in turn prevail on the other side to throw in the towel. 

But mediation is not a contest.  It is a facilitated negotiation.  While some evaluation of the merits by the mediator (usually in private caucus) is certainly part of the process, there is a lot more to it. The object is to get the other side to enter an agreement, not vanquish them.   Changing roles from litigation advocate to the lead negotiator in a mediation does not come naturally or easily to everyone.  Litigators should consciously try to adjust their attitude and put on their negotiating hat before embarking upon a mediation.

Mediation can be an exhilarating and rewarding experience for the lawyer because it provides the opportunity to be creative and intuitive and also to work closely with clients toward what is likely to be a positive outcome.

Selecting the Mediator

Mediators are not a commodity, and it is important to select the right mediator for your case.  Ideally you would like to appoint a mediator who has both process skills and some familiarity with the subject matter of the dispute.   Check references carefully and make sure you and your client have a good understanding of the proposed mediator’s particular style, experience and success rate.  It is perfectly appropriate to interview the mediator and to ask the mediator about his or her particular approach, provided both sides are given the opportunity.   Every mediation will be different, and you should look for a mediator who has the talent, experience and range of skills to manage the dynamics of your particular dispute.

A good mediator will know when it is best to be a patient listener, and when it is important to provide some guidance and direction.   The mediator should have a well-managed ego, and not have the need to control the entire process.  A good mediator will know when to stand back and let the process take its course.  People skills are also important, as is stamina and the ability to listen patiently, and to do whatever it takes to close the deal.   An effective mediator has to be a good closer.

The Mediation Position Statement

            The mediation position statement is one of the best ways for the parties to help the mediator help them. I would encourage counsel to exchange mediation statements for a better understanding of opposing positions. Any confidential information to be considered by the mediator should be sent to the mediator confidentially. The mediation statement should be as candid as possible about the strengths and weaknesses of the case. Counsel should also include their best judgment as to the range of likely outcomes on both liability and damage issues should the matter go to trial. Items to be discussed in the mediation statement would include the following:

  • status of the legal proceedings
  • a statement explaining the factual and legal positions of each party
  • attach key documents and pleadings
  • A history of settlement negotiations
  • the client’s interests, needs and expectations
  • The identification of parties and counsel who will be attending the mediation

For a more complete description as to what to include in a mediation position statement, consult the Utah Mediation Best Practice Guide approved by the Utah Judicial Council on April 25th, 2016.

Preparing Opening Statements

            Many lawyers squander the opportunity for an effective opening oral statement in  mediation by simply saying they have very little if anything to add to their written mediation statement.   Remember again that the object in mediation is to motivate the client on the other side to enter an agreement.   The opening statement is the lawyer’s opportunity to give the client on the other side a preview of how the case may play at trial, and at the same time open some doors to the possibility of a negotiated agreement.   Don’t start the mediation with your closing argument to the jury.   Don’t make a bombastic speech that will completely alienate the other side.   Remember that at the end of the day you hope to be able to shake hands with the other side on a deal.  Convey the strengths of your case and the weaknesses of the other side’s case in your opening statement.  But do so without personal attacks or inflammatory language.   Indicate that you and your client, while confident about your position, are reasonable people and are willing to listen to and consider what the other side has to say.

Preparing for Private Caucuses

            Most mediations involve private sessions between the mediator and each side.   This is the opportunity for parties to collaborate with the mediator on strategies for resolving the case, and for the mediator to gain a better understanding of what the parties’ expectations and needs are.    Most mediators, quite appropriately, will try to engage the client representative in a dialogue during these sessions.   Often, this becomes an opportunity for the parties to “bare their souls” with the mediator about their concerns and expectations.  

            Make absolutely sure that you have a clear understanding with the mediator as to what the ground rules are as to the degree of confidentiality that applies to these private sessions. 

It is unreasonable to expect that everything that is discussed with the mediator in these private caucuses will be kept confidential from the other side.   Most experienced mediators will indicate to the parties that they will respect all confidential matters, but that the burden will be on the parties to identify that part of what is said in the caucus that must be kept confidential from the other side.       

Mediator Evaluations and Mediator Proposals

            Most parties at some point will want to know what the mediator thinks of their case, and also what the mediator thinks a fair settlement should be.   Some input from the mediator along these lines can be helpful at the appropriate time if communicated privately.  But be cautious about asking the mediator to make a proposal or pushing for a mediator’s proposal too early in the process.  This is an impasse-breaking technique favored by some mediators whereby the mediator privately communicates a settlement proposal to each side

 Closing and Documenting the Settlement

Think ahead of time about what terms you will require in a settlement agreement, such as a confidentiality agreement, and communicate any special provisions privately to the mediator early in the mediation.  Anticipating issues such as this with the mediator before the economic terms of a settlement are agreed to is a good idea in most cases, because the mediator can then prepare the other side and avoid annoying roadblocks or potential deal killers that can arise in documenting the settlement.  

You should not leave a mediation session in which a settlement has been reached without documenting the essential terms of the deal in language that confirms a binding settlement agreement is intended and providing in the settlement agreement that it is admissible to prove its terms notwithstanding any mediation confidentiality statutes or mediation confidentiality agreement.  Usually, it is adequate to hand-write an enforceable settlement memorandum listing the essential terms of a binding settlement, but which states that it will be superseded by a more formal document which the parties agree to negotiate in good faith and in a manner that is not inconsistent with the essential terms.  

Occasionally companies or governmental bodies will require a board approval for the settlement, which makes it difficult to sign a fully binding agreement at the conclusion of the mediation.    Usually, it is enough for the employer’s representative to agree in the written settlement document that the settlement contingent only upon board approval, but that the representative commits to recommend that the settlement be approved by the board representative. 

Conclusion    

            Here is a quick review checklist of practice points to keep in mind as you embark upon a mediation.

1.         The goal of the mediation process is not to win, but to persuade the other side to enter an agreement on terms that your client can accept. 

2. The key to success in mediation is careful preparation.   

3. Exercise care in selecting the mediator.  Know your mediator’s style. 

4. Prepare your client for what to expect at the mediation.

5. Prepare a written have mediation position statement which is exchanged by the parties.

6. Include in the mediation position statement the issues of fact and law an argument supporting your client’s position . Also include key documents in pleadings as well as the clients’ objectives and interests.   

7. Draft a settlement agreement before the mediation to use as a checklist of the terms you will need in the final document. Send to the mediator any special terms you may require so that he or she can help you negotiate them. 

Remember, at the end of the day your mediation should be used to find a better alternative to a litigated result. Happy mediating to all.