The significant problems we face cannot be solved at the same level of thinking we were at when we created them.
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:
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.
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.
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.