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INTRODUCTORY TIPS ON MEDIATION

TIMING

  • Before filing suit
  • Before depositions
  • Before summary judgment motion/ruling
  • Eve of trial

The earlier the stage of the dispute, the more time the mediator will likely need to find out the information, and to feel out the parties’ attitudes, necessary to help move the parties toward settlement. And, at the same time, the more uncertainties that the parties will have to accept to settle their dispute. Some times the only solution is to recess the mediation long enough for the parties to conduct enough discovery for counsel to feel reasonably comfortable in analyzing the range of potential outcomes, should the case proceed to arbitration or trial.

AGREEING TO MEDIATION

  • Make sure any conditions that you want to be placed on the mediation are aired and agreed to before starting the process -- e.g., confirm that your adversary will have a representative with full settlement authority personally present at the mediation.
  • Similarly, discuss with opposing counsel any potential problem areas -- e.g., your governmental client cannot commit to any settlement tentatively reached in mediation until receiving formal approval from its governing body. Avoid surprises on the day of mediation.
  • Be open to agreeing to your adversary’s preferred mediator. If your adversary trusts that mediator, it could help when the mediator is trying to close the deal in the adversary’s room.
  • Resist a suggestion that the mediation start at 1 pm. If it doesn’t settle by 5, the willingness of parties and their lawyers to continue mediation past 5 or 6 seems to be waning. Calling a halt at that point, with a plan to later reconvene, will likely dissipate any accumulated momentum.

PREPARING YOUR CLIENT FOR MEDIATION

  • Make sure your client understands that for the mediator to explain the advantages of reaching settlement, it should be anticipated that the mediator will explore and emphasize the risks and expense of not settling.
  • Reassure your client that the mediator will be sharing reciprocally gloomy observations and predictions in the other room.
  • Before going to the mediation session, make sure your client understands and accepts that there is no such thing as guaranteed victory at trial or arbitration, and realizes how much it would cost, financially and psychologically, to find out.
  • Prepare the client for the possibility that the mediator will at some point want to meet with just the lawyers.

MEDIATION STATEMENT

The mediator will ask you to submit a confidential mediation statement, typically including a list of topics that the mediator would like you to address.

  • If there are key cases, consider attaching them to your statement, underlining the important language. Same with key exhibits. The statement isn’t a summary judgment brief, but you do want the mediator to understand your case going in.
  • Include any helpful verdicts or settlements in similar cases.
  • The mediator will ask for your candid assessment of your weak points. Resist the inclination to pretend there aren’t any. If there weren’t, you wouldn’t have agreed to mediation. Willingness to trust that the mediator you select will not use your candor to your client’s disadvantage is central to a successful resolution.
  • Potentially sensitive information (e.g., you have a difficult client) should be shared with the mediator in a phone call before mediation, assuming you are sending your client a copy of your mediation statement. Most mediators will call you, or might suggest a meeting, ahead of mediation. If the mediator doesn’t call you, call the mediator. Find out what the game plan is.

THE MEDIATION PROCESS

  • The mediator will have the parties and their lawyers sign an agreement to mediate before or at the start of the mediation. The main thrust of the agreement will likely be an emphasis on the confidentiality of the process. There usually will be a provision regarding the payment of the mediator’s fees, which will include the lawyers’ agreement to pay those fees if their clients don’t.
  • Find out from the mediator how she intends to start the mediation. Often the mediator will meet with everyone in a joint session to have the parties and counsel sign the agreement to mediate, to give an overview of the day’s activities, and to confirm the confidential nature of mediation communications. Typically, in our area, it has been rare for the mediator to invite opening statements from counsel--they can raise hackles detrimental to the process. On the other hand, some mediators (myself included) have been observing that giving each side an opportunity to hear their opponent’s view of the case from opposing counsel, not filtered through the arbitrator, helps them appreciate what lies ahead if the case doesn’t settle Then again, again, in a contentious case, the mediator might have the parties separated from start to finish. Find out ahead of time what the process is going to be; offer any suggestions.
  • After the opening joint session, the sides will typically be directed to separate rooms. In most cases, that is the arrangement for the rest of the day, with the mediator shuttling back and forth between rooms, conveying offers and counter offers, often accompanied increasingly specific reminders of the risks involved if the case doesn’t settle. As with all aspects of mediation, if you think it would benefit the process for the parties to regroup for one purpose or another, discuss that with the mediator. If the issue is how much one side is going to pay the other, with no future relationship envisioned, getting back together might not serve a purpose. If the parties might have dealings after the case is over, consider making the process more collaborative.
  • Let the mediator have conversations with your client, and don’t get impatient if, especially at the beginning, they are not about the case. A little bonding can go a long way later in the day when your client’s decisions might turn on the client’s trust (and yours) in the mediator.
  • If your client needs to be controlled, you do it. If the mediator has to, that could weaken the bond that the mediator is trying to establish with your client.
  • Ask the mediator to leave the room as necessary to discuss strategy with your client.

HOW TO AVOID MAKING THE MEDIATION A DISCOVERY TOOL FOR YOUR ADVERSARY

Just be on guard. The mediator will respect your reluctance to show all your cards.

THE SETTLEMENT AGREEMENT

  • The mediator should not let the parties leave a successful mediation without having at least the material terms of any settlement agreement, if not the full, final agreement, put in writing and signed.
  • It is efficient to include a provision to the effect that, if there are post-mediation disputes about the settlement agreement, the mediator will have full and final and unappealable authority to rule on them.


© Law Office of Charles E. Corrigan, P.C.

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