A “Success” Primer for Mediation: Achieving Client Goals Through Strategic Preparation

If “success” is defined as achieving client goals and objectives, mediation can be the road to a successful outcome. Indeed, in today’s world of “the Vanishing American Trial”, mediation has become the essential process for achieving client goals and objectives. Litigation rarely serves the purpose. Studies show no more than 1.2% of all cases filed are tried. For many litigants, therefore, mediation is the closest they will come to having their “day in court.” Regrettably, too many litigators view mediation as simply one more stop on the litigation express. They fail to recognize mediation as a golden opportunity to step back and resolve conflict through an interest-based, strategic, and mutually beneficial process of assisted negotiation. As a result, mediation is not always as successful as it might otherwise be. What follows is a time-tested road map and primer for “success” at the mediation table.

Timing: As in almost every other aspect of our lives, timing in mediation is critical. Business Court experience proves early mediation can be cost-effective, successful and satisfying. In other types of litigation – employment, commercial, tort - parties may need discovery before making good judgments at the mediation table. When critical information isn’t known, mediation may be best after a round of depositions is complete. Alternatively, the best time might be when momentum is building. For example, after a particularly good deposition or important motion hearing. Every case is different. Every dispute is unique. One size does not fit all. Strategic litigators give careful consideration to when mediation will be most useful in each individual conflict.

Mediator Selection: As no two disputes are alike, the same is true of mediators. Mediator selection warrants consideration of the dynamics of each and every conflict. What are the key impediments to resolution? Do the parties irritate one another? Are the lawyers helping or aggravating things? What mediator personality would be best? Who is the right mediator for this particular matter? Would a process expert or a subject matter expert help the most? Does someone require a light touch or a heavy hand? Should you suggest a mediator you trust, or invite the other side to suggest someone they trust? Strategic litigators select mediators individually, matching a mediator’s skill set to the dynamics of each unique dispute.

Process Design: In my experience, most litigators prefer shuttle diplomacy, fearing dire consequences from joint sessions and opening presentations by parties and counsel. That’s fine. I’m more than willing to accommodate. However, opening presentations in a joint session, safely managed by an experienced mediator, can provide enormous, often overlooked, benefits. Because the first rule of mediation is there are no rules, the process can be tailored to fit the unique dynamics of each dispute. Strategic litigators are flexible and avoid rejecting joint sessions automatically. Even when the parties start in separate rooms, joint sessions later in the day to hammer out specific issues or enhance communication should be considered.

Preparation, Preparation, Preparation: In the immortal words of Louis Nizer: “Preparation makes the dull lawyer bright; the bright lawyer brilliant; and the brilliant lawyer steady.” Strategic litigators prepare for mediation thoroughly and methodically with the same zeal and passion as preparing for a trial. They employ their experience, their focus, and all the time and attention necessary to make the most of the mediation process. Strategic litigators leave nothing to chance, including:

• Review the file from top to bottom, going over the facts, rereading the documents, reviewing the pleadings for admissions or concessions, and outlining deposition transcripts. Consider how quotations or citations might be used in written submissions. Anticipate the other side’s factual recitations and pull together “impeachment” or contradiction materials that might prove useful at the table.
• Research key claims and defenses: Who has the burden of proof? What elements must be proven for each? Is there evidentiary support for each claim and defense?
• Identify strengths and weaknesses. What are the risks? How will you explain problems to the mediator and opposing counsel? What are the risks opposing parties face? How might you best sow doubt and encourage flexibility on their part once bargaining starts?
• Evaluate your case realistically. Estimate the likelihood the suit will survive a dispositive motion. What documents or testimony might or might not be excluded in limine? How sympathetic are the claims and defenses? What are the losses and damages? Are they persuasive? How do the witnesses come across? What is a reasonable range of potential outcomes? How should risk analysis impact valuation for settlement? Consider your BATNA/WATNA (best and worst alternative to a negotiated agreement).
• Identify next steps if the case does not settle. Is there a path for return to the bargaining table in short order?
• Assess the costs of non-agreement. What additional attorney fees and costs are likely if the litigation proceeds?
• Reach agreement with clients on their goals and objectives. If the client is unrealistic or unwilling to recognize risk, share your analysis and the basis on which you reached your own valuation. Consider involving the mediator to assist a party in recognizing reasonable risks and weighing potential costs. Party self-determination is the sine qua non of the Standards of Conduct for Mediators, of course. Parties determine whether they will settle or not. It’s completely up to them. However, parties are not entitled to their own facts. If they choose to roll the dice after exposure to the risks, they are entitled to do so.
• Determine whether there are non-economic goals to explore such as confidentiality, relationship repair, continuing employment or whatever. Counsel should not learn about these for the first time at the table.
• Educate the parties about the mediation process. Encourage flexibility. Give them materials to read and ponder. Individuals new to litigation may not be expecting hardball negotiation tactics which can cause destructive and emotional reactions. Most have negotiated the sale of a car or home where the asking price relates closely to offers and counter-offers. They may become agitated and emotional upon hearing unexpected and unrealistic – often insulting – early round offers. When managed properly, mediation is a powerful information exchange process. Parties should be encouraged to listen and pay attention. If the case doesn’t settle, there can be great value in learning where the other side is coming from.
• If a party is to make an opening presentation, counsel should preview it and make suggestions to improve the message, eliminate antagonizing language and increase the likelihood it will be heard and understood by the other side.

Written Mediation Advocacy: Many litigators draft their written mediation submissions for the mediator or their own clients. I’ve never understood why. The most important audience is actually the decision-maker on the other side. Strategic litigators craft their written presentations and arguments so as to be heard and considered by the other side. Parties generally reject factual recitation from their opponents. “We know what really happened! They’re lying.” If presented in terms of risk, however, alternative versions of the narrative can garner the attention and be afforded the weight it deserves.

Offer/Concession Strategies: Plan the negotiation process with the mediator in mind from start to finish. Predict as many rounds or steps down the board as possible. Many litigators reach agreement with their clients on a “top” or “bottom” line or range; and from there decide an opening number to give themselves enough room to reach the goal. Strategic mediators anticipate the response to each offer and concession and plan next steps in advance. Negotiators and advocates who operate “by the seat of their pants” to “get what they can” at the table are buffeted by emotions, not their best interests.

Working with the Mediator: Boiled down to its least common denominator, mediation is nothing more than an assisted negotiation. Strategic litigators engage with the mediator, take advantage of the mediator’s role as a “negotiation coach” by asking for suggestions, and listen carefully to the messages brought over from the other room. The mediator is the only person in the process who will have caucused with both sides and has the temperature in each room. The mediator is an asset and should be employed as such.

Listen, Listen, Listen: Most cases settle at the mediation table or shortly thereafter. When conducted by a skilled mediator, each side learns a great deal about opposing perspectives, risk analysis, damage theories, arguments and factual presentations. Perhaps the parties will reconsider their own risk analysis. Perhaps they will learn something new; or, see something known in a new light. Mediation is an opportunity for the disputants and their representatives to gather all they can in order to make good judgments about whether to settle and at what level. If the dispute does not settle, the process should nonetheless provide value.

• Better understanding of each other’s perspective;
• Knowledge of what it will take to resolve the case, which can become critically important as an impending trial date focuses the mind;
• Appreciation of who and what they are up against;
• Heightened risk assessment which - given time to process - may later influence decision-making.

Mediation presents a golden opportunity to achieve client goals and objectives, save time and money, resolve disputes constructively, repair relationships, manage risk, open channels of communication and achieve closure. In other words, “success!” The benefits of mediation, however, are not automatic. A successful mediation requires intense preparation, constructive involvement of parties and thoughtful strategic planning.

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Sheldon J. Stark is a member of PREMi and the National Academy of Distinguished Neutrals. He is an employment panelist for AAA and one of three trainers in ICLE’s award-winning, 40-hour hands-on mediation training. He received the Distinguished Service Award from the SBM Labor and Employment Law Section in 2009 and the Michael Franck Award from the SBM Representative Assembly in 2010.