1. What is mediation?
During mediation, a qualified mediator assists both parties to come to an agreement by discussing different options for settlement and helping each party to better understand the viewpoints of one another. Mediation sessions can be joint sessions where both parties are present or private caucuses where the mediator meets with each party individually. Unlike arbitration where the ultimate decision is outside of the parties’ hands, mediation allows the parties to come to an agreement together which leads to a more amicable situation.
2. Selecting the Mediator
First things first, when a client is deciding on participating in mediation, it is paramount to look for the appropriate mediator. The attorney, and more importantly the client, wants an honest broker. This is something that the client and the attorney should decide together, notwithstanding knowledge of the mediator’s reputation and history of successful mediations. The attorney should also search for a mediator that is sophisticated enough to use the information wisely, and one that is able to read the attorney and the client’s signals (or body language) astutely. This is imperative because sometimes in mediation, participants are hesitant to lay everything on the table, and mediators that are able to feed off of body language, and direct the conversation in a way that is needed, can help the client overcome certain obstacles in mediation, and result in a successful session. Another important characteristic of a good mediator is that they are able to keep everyone in the game. That means that the mediator is able to control a conversation and frame issues, responses, and statements in a way that it prevents participants from losing faith in the process.
Also, an attorney should look for a mediator that has a reputation of competence and tenacity when pursuing matters in mediation. An attorney and the client want to reach a result, and it is extremely helpful if the mediator has an understanding and shares the same level of desire to reach an agreement. It is important that the attorney make sure that the mediator has subject matter and process expertise. Is the mediator qualified to do a particular type of mediation? What specific experience do they have? An attorney should try and gather knowledge on the reputation of the mediator through colleagues and peers. It is important to know all the preceding information, so an attorney knows what their client is walking into for the mediation.
It is also important to discover what kind of style the mediator uses. The type of style the mediator uses can help the comfort level the client has with the process. It is entirely appropriate for an attorney to contact the neutral to discuss their mediation style. It may also be of use to discuss what the attorney’s role is in their style of mediation. For example, try and determine what preparation needs to be done on the part of the participants, how they feel about written submissions, how the mediator use caucus sessions, any evaluative techniques, and how a mediator would handle participants who are at an impasse.[1]
3. Preparing Written Materials for Mediation
An advocate for a client might be able to submit a confidential submission to the mediator summarizing the client’s various litigation positions, including its rebuttal positions that may provide the client with a significant advantage.[2] This may also address any underlying issues that may arise during the mediation which may drive the settlement efforts.[3] A well-written submission may enable the mediator to determine which paths are most likely to result in a resolution.[4]
A concise opening statement could also be prepared. This has many advantages, as it allows the other party to understand the client’s position unfiltered from opposing counsel objections.[5] It may also be advantageous to create an objective litigation-risk assessment.[6] This is something that needs to be discussed with the client prior to mediation, and what settlement proposals should be seriously considered.[7] Compare what might have been achieved in litigation with what could realistically be achieved in mediation, including all of the legal and business consequences of each.[8]
4. Preparing for Mediation
In preparation for mediation, it is important to try and explore potential for creative solutions to the client’s issue. Try and think of outside the box scenarios that will create a win-win for both of the parties. Furthermore, try and use integrative bargaining and a collaborative approach to mediation.[9] This will make the process smoother and more likely than not successful for the client. The client has just as much preparatory work to do as the attorney because they have to try to do their best to figure out their underlying interests in the issue.[10] What is it that they truly want to see done in terms of a resolution? The attorney should try and have this conversation with the client to really figure out what is in the best interests of the client.
The client should also try and review any materials that are being submitted to make sure his interests are accurately represented. It is the duty of the attorney to assist the client with the review of these documents, as well as make sure they are aware of the mediation process – what is expected, what the pros and cons are of engaging in mediation, and etc.[11] Unfamiliarity with these options, as well as the steps and procedures in the mediation process can prove troublesome, as unfamiliarity can present a lack of comfort with the process. [12]
The client also needs to understand the scope of mediation confidentiality, and what information need not be revealed.[13] It should be stressed that the client should have a respectful decorum towards the other party. The showing of willingness to talk and work out issues may win the client favor with the neutral. A sincere apology or expression of empathy prepared and ready to present at the right time could land the client points with the mediator, as well as a connection with the other party, and a higher chance of conflict resolution.[14]
Preparing a draft settlement agreement prior to mediation can be useful.[15] This will explain what the parties want on the outset of mediation, and may each understand the underlying interests of the other.[16] It may also serve as an evaluative tool to measure the progress that has been made in mediation. It is a great tool for reflection. Preparing a draft agreement that shows a reasonableness of terms can give credibility to the proposing party. It shows that that party is willing to concede a few things to reach an equitable and reasonable agreement to avoid litigation.[17]
Essential attorney preparation for mediation sessions should include correctly determining the legal issues at hand, develop actual damages and potential for recovery under the cause of action alleged, make sure that the client’s position is understood (including the client understand the other party’s hidden agenda), and to prepare a negotiation strategy with settlement positions and explanations for all possible offers. [18]
In addition to the preceding tasks, an attorney should analyze the strengths and weakness of the case, what is the range of possible verdicts, how much would have to be spent in the alternative, or proceeding to trial after mediation, what is a reasonable resolution of the dispute, and what is the judge likely to do.[19]
5. Start of the Process
The mediation process starts even before the face-to-face meeting. It starts at the first communication between the mediator and the interested parties. The attorney should make sure that the process is crafted and designed in a way that will contribute most to the success of the client reaching a beneficial outcome. This information can be elicited from the neutral party in an informal pre-mediation conference.
6. Going Into Mediation
The initial mediation session is an important one, as it will allow an opportunity to persuade the other lawyer’s client to the grievous downside of not settling the issue.[20] This should be done in mind and in balance with the idea that you don’t want to de-motivate your own client from settling. [21]
There are certain challenges though that mediation can present that need to be overcome. There may be hidden agendas from all parties involved.[22] This is why trying to figure out and address underlying interests is so important. One challenge that attorneys traditional face is themselves and their clients seeing the mediator as adversary, due to the traditional nature of the dispute.[23] This is not the case. The mediator is there to facilitate an agreement and to guide a discussion with the parties to lead to a reasonable agreement. Another challenge that can be presented is knowing whether or not it is too early to mediate the case.[24] The issue may have to mature more before parties are willing to come to the table, or one of the parties may want to exploit discovery prior to going into mediation in order to leverage a better deal. It all depends on the case that an attorney has. Like previously mentioned, be wary of the hidden agenda.[25] It is the job of the mediator, as well as the interested parties and their representatives that all the appropriate parties are in the room and able to make the decisions that will lead to an agreement.[26]
Again, it is important to let the mediator mediate. They are there to help craft and reshape the parties’ messages into a constructive format in order for the parties to communicate productive in a non-adversarial and collaborative nature.
7. At Mediation
An attorney who is at a mediation session should help the clients by doing the following:
- Listening to what the parties and the mediator is saying;
- Reflecting on the things that are being discussed;
- Asking the right questions (this is only if the mediator allows open attorney participation, most likely with ground rules);
- Introducing risks in two ways (making sure the client is aware of the risks of a certain agreement, and advising the client to what risks the other party would bear if a certain agreement were reached, or presenting such information that will put the other party at risk for losing negotiating ground);
- Helping the client understand the process;
- Helping the client understand applicable legal principles;
- Helping form an agenda for the mediation
- Brainstorming any solutions; and most commonly
- Drafting or memorializing the agreements that the parties have arrived at.[27]
8. Strategies During Mediation
During meditation, there are two types of common negotiation strategies. The first one, “positional negotiation” involves both parties exchanging offers to get the best results for themselves. The second type is called “interest-based negotiation,” which involves the parties describing their interests and looking for solutions that satisfy them both. At the completion of mediation the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
9. Post Mediation
Post-mediation, counsel is normally responsible for memorializing the agreement that their client has reached with the opposing party, and usually will place those agreements of record with the court, and will assist in carry out any provision that requires immediate or down-the-line attention.
[1] Picker, Bennet, G., Preparation: The Key to Mediation Success, 28 Alternatives to High Cost Litig. 25, 28 (2010).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Picker, Bennet, G., Preparation: The Key t o Mediation Success, 28 Alternatives to High Cost Litig. 25, 28 (2010).
[10] Id.
[11] Keiner, Jeffery, et. al., May It Please the Mediator: Strategies for Success in the Era of the Vanishing Jury Trial, WL 284495 (2010).
[12] Id.
[13] Id.
[14] Duvall, Suzanne Mann, The Advocate’s Role in Mediation, §77:5, 14 Tex. Prac., (3d ed., Feb. 2016).
[15] Picker, Bennet, G., Preparation: The Key to Mediation Success, 28 Alternatives to High Cost Litig. 25, 28 (2010).
[16] Id.
[17] Id.
[18] Duvall, Suzanne Mann, The Advocate’s Role in Mediation, §77:5, 14 Tex. Prac., (3d ed., Feb. 2016).
[19] Id.
[20] Keiner, Jeffery, et. al., May It Please the Mediator: Strategies for Success in the Era of the Vanishing Jury Trial, WL 284495 (2010).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] The Role of Counsel, MECLE-PGD § 2.2.8, 2016 WL 1574757.
