Tips from Mediators
A young litigator is presented with a file a few days before mediation. The partner in charge has thoughtfully provided two detailed mediation briefs, one from each side. The young litigator is not familiar with the file or the client, but is comfortable with the area of law. What advice would you give the litigator about how to prepare for the mediation?
Steven C. Gaon, B.A., J.D., C. Med.
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It’s imperative the litigator be familiar with the file and the client before the mediation begins. Ideally they would review the file and meet the client at least a day or two before the session. The reason is that although I firmly believe that the relative legal strength or weakness in a legal position helps guide the negotiations, the key ingredients to negotiation and settlement are the client’s interests and non-legal considerations. For example, despite a strong legal position, the client may not be able to afford the litigation or be unwilling to take the risk, however small, of losing; or a client may not have the time to devote away from work or the requisite emotional state to litigate.
On the other hand, a client may be adamantly opposed to settling because of internal company policy despite having a weak legal position. Litigators may find a particular problem in their own or the opposing parties non-legal position. You only find these things out through solid file review and client preparation for the mediation. Also, it’s critical to discuss best and worst case scenarios and bargaining strategy with the client beforehand. If for some reason there is not time to do that before the session itself, the litigator should request time at the outset on the day of the session to meet privately with the client.
Joy Noonan, LL. B., LL. M.(ADR), C. Med.
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Here are some of the things that I wish someone would have coached me on, back in the day, and areas where I will always try to ( discretely) assist as a mediator:
If you have a few days, make your bedtime reading Roger Fisher's classic Getting to Yes, borne out of the Harvard Negotiation Project. This is a wonderful easy read, and Fisher sets out the classic method to principled negotiation like no one else. There is a reason this book is still a bestseller.
Armed with a sense of what principled negotiation is about from Fisher's book, you will quickly see that what you have been given via these two briefs are the "positions" of the parties. So you know what the parties say they "want" -- the job now is the see if you can determine what they "need". Don't get stuck bargaining over positions. Many mediation efforts fail when counsel allow themselves to get sucked into their clients' positions and are unable to negotiate a better alternative to the litigation.
You will want to contact the client and meet in advance of the mediation. If you cannot meet in person, you at least need to have a good talk over the phone and to arrange to meet early before the session starts. There needs to be a dynamic between you and your client where you have good open communication, and trust. Talk to the client about the action, what the mediation is aimed at - and see if you can get a better sense of what kind of a resolution might work. Ideally you might have more than one possible pathway. We call this brainstorming options. Be careful at this stage though, as you do not want the client to feel you are not there to "fight for them" -- of course you are. But with the rate of settlement being close to 95% for civil cases, the BEST lawyer will be the one who can get the clients a BETTER, FASTER settlement. Have a strategy with your client about how you will, together, approach the session. Know as best you can ( and be prepared to revisit throughout the session) the client's BATNA ( best alternative to a negotiated agreement). Put another way, if they say "no" to this offer is the continuing of the litigation the better alternative at this stage? You need to be ready to weigh offers against the BATNA. I also encourage parties to think about what the other side "needs" as well --- what is their BATNA.
Make sure that the person joining you in the mediation will have the authority to settle the case - or at least has the ability to make a call where the person on the end of the line can OK it. In my experience, cases are far more likely to settle when the person with the authority is at the table. That said, you are going to work with what you have.
After you have spoken to the client, pick up the phone, and call the lawyer on the other side of the case. You are not the counsel of record, so your reason to call can be to let them know it will be you attending at the session, and to strike up some kind of dynamic with them to convey that you will be a decent person to work with. Since you are just getting the file, is there anything you should know that is not in the briefs? You may be surprised to learn that the parties had discussions about settlement previously, for example. The more you know about the dynamic, the more confident you will be. Part of what gets deals done is trust and respect between counsel, and good counsel know how to develop and cultivate those relationships. Remember, ultimately they will be your vehicle to convincing the other side to say "yes" to a deal. Many counsel will also call me as the mediator to let me know they will be coming instead of the listed counsel - that is again, a positive and encouraging gesture.
You will be well prepared, and if ultimately a deal that is in your clients best interests can be reached ( BATNA) then great. If that cannot happen, you nevertheless want to leave this process with counsel opposing respecting your efforts and skill, and your clients feeling understood and well advised.
Kevin's Website - Click on Photo
Having matters dropped on you at the last moment is one of the more unpleasant parts of
being a junior lawyer. Some old-school counsel see it as a rite of passage – a sort of sink or swim approach to teaching young litigators. When I was articling, I was sent in to finish the second half of a sexual assault trial on a date set by senior counsel knowing fully well that he could not attend. I often wondered if I would have remained in litigation had that client been convicted.
In the scenario facing you here, I would recommend that you first read the entire file – cover to cover. Then I would suggest that you schedule an appointment between the client, senior counsel and yourself to allow for a formal introduction. This interview is a necessity in order to properly prepare for mediation.
Take advantage of the time to review the mediation process. It would also be wise to review the strengths and weakness of the case, including the opposing side’s mediation brief. Next, I would talk with them about reasonable expectations at the mediation. This is the point at which you can begin the process of controlling their expectations.
You may also want to review with your client the future steps in the legal process to bring this matter to trial. This allows the client a greater understanding of the time, cost and personal investment required, should the matter not settle at trial. This is another way to insure that your client’s expectations at the mediation are both reasonable and realistic. A client can never have too much information about his or her own case. Time and time again, I have been surprised at just how quickly a client can grasp all the important considerations in advancing litigation.
The last thing you should do is review your mediation brief and write your own notes covering the things you want to discuss in the plenary session in the mediation. Remember, the client is now yours and expects you to be well versed in all of the issues of the case.
Rick's Website - Click on Photo
The two obvious areas for preparation are familiarization with the file and familiarization with the client. I am amazed at how often information that is disclosed at a mediation seems to be a revelation to one of the lawyers. This is information not only from the other side, but also from the lawyer’s own client. It is of the utmost importance that the lawyer be the master of the facts. By knowing more about the case than the opposition, you have an automatic advantage, not only because it may make the other lawyer feel insecure with regard to his or her position, but also because it may become clear to the other lawyer’s client that you are doing a better job and are someone to be feared if the matter goes to court.
With regard to client preparation, it is of the utmost importance that the lawyer understands what the client hopes to achieve at the mediation. Those hopes may be reasonable or, in some cases, beyond the realm of anything that can be accomplished. The lawyer must ensure that the client has a strong grasp on what can and cannot be achieved in the lawsuit and what can and cannot be achieved in the mediation. Also, spending time with the client before going to the mediation will build up a better relationship between the lawyer and the client so that when the lawyer asks the client to make a decision, without a great deal of time to think about it, the client will hopefully be more comfortable making the decision or taking the lawyer’s advice prior to making that decision.