A fanatic is one who can't change his mind and won't change the subject.

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Mar
4

PREPARING FOR YOUR FIRST MEDIATION: A Step-by-Step Checklist for Advocates

Review the file from top to bottom

Mediation is likely to be the closest your client gets to having their day in court. Consider preparation for it as the moral and functional equivalent of preparing for trial.

  • Examine the pleadings for important concessions or admissions.
  • Organize the documents – identify key attachments, quotes and cull outs for your written mediation summary.
  • Outline deposition transcripts – cull out key testimony to illustrate the points you make in your written submission.
  • Review the elements of your claims and defenses – do you have all the evidence you need to meet your burden?
  • Collect any missing information or material needed to support your claims or defenses.
  • Develop a theory of the case/defense to build the evidence around and tell a compelling story.
  • Identify the strengths and weaknesses of both sides of the dispute.
  • Evaluate the claims and defenses.
    • Prepare a dollar range.
    • Estimate the extent of the risk.
    • Pull together your time records and expenses.
    • Calculate a litigation budget to complete the pre-trial process if the dispute does not settle.
    • Calculate the cost and fees required to try the case.
    • Calculate the cost and fees if an appeal is necessary.
  • Engage with your client about the mediation process, preferably face-to-face.
    • Educate your client in advance regarding the process and how it works.
    • Explain the difference between traditional principles of zealous advocacy and mediation advocacy.
    • Share your perspective on the mediation process and answer any questions.
    • Solicit party goals and objectives, monetary and non-monetary alike.
    • Seek agreement on the value of the claim for settlement purposes.
    • Explore possible relationship continuation or relationship repair.
      • Does a continuing relationship make sense; should the mediator assist in opening more effective communication channels?
      • Is there any interest in relationship repair, e.g. reinstatement for employer/employee, continued landlord/tenant, new business-to-business transactions, retaining business partners, etc.
  • Identify common interests on which to build.
  • Consider group/conflict dynamics that might develop at the mediation table.
  • Discuss mediator selection.
  • Discuss process design.
  • In connection with your client’s oral presentation at mediation:
    • Provide guidance for what the party might say and with what tone.
    • Encourage speaking from the heart.
    • Discourage preparing something to read to the other side.
    • When complete, preview the client’s opening remarks and help shape the most effective, understandable and persuasive narrative possible.
  • See also, https://www.starkmediator.com/a-success-primer-for-mediation-achieving-client-goals-through-strategic-preparation/

Tailor the mediation process to your particular dispute

No two disputes are identical. Mediators are often flexible, willing to work with counsel to design a mediation process to fit the particular dynamics and needs of your particular conflict. Coordinate with opposing counsel and the mediator to develop a process with the best chance of resolving the matter.

  • Joint session vs. caucus
    • Is there anything a party needs to get off his/her chest directly to the other side?
    • Is there a particular message you or your client wish to convey to the other side in your own words?
    • Would you like to make a “pitch” directly to the decision-maker on the other side?
    • Are there visual aids or exhibits you would like to disclose and discuss in person to encourage a better understanding of risk?
    • Consider arguments for and against a joint session before defaulting to traditional shuttle diplomacy.
    • For a discussion of factors to consider before deciding for or against the use of joint sessions, see https://www.starkmediator.com/why-you-should-consider-joint-sessions-in-your-next-mediation-2/
  • Participant attendance – who should be present and why?
  • Opening remarks by parties/counsel/both
    • Provide guidance – what should be included/excluded?
    • What tone should be set?
    • What’s the objective?
    • Schedule time to review party presentations.
  • Mediator style – Decide which particular style of mediation will work best and identify mediators best suited to offer that approach.
    • Facilitative
    • Evaluative
    • Transformative
    • Combination
  • Level of authority
    • Is the lawyer aware of the authority at the table?
    • Which decision-makers must be contacted before a final agreement can be reached?
    • Arrange in advance to communicate with such individuals.
  • Logistics
    • Due dates.
    • Number of conference rooms needed.
    • Food service.

Prepare a written mediation summary

Your written submission should be exchanged with the other side to prepare them for what they will hear at the mediation table – and what they will be contending with in discovery and at trial if the dispute doesn’t settle.

  • Identify target audience – write to persuade the other side, not the mediator and not your own client.
  • Finalize a theme for the written submission
  • Tell your story in a way that will cause the decision-maker on the other side to give it serious consideration.
  • Pull together critical materials for attachments and quotes.
  • Incorporate the best quotes from transcript or documents into the body of your submission.
  • Attachments – attach key pages.
  • Highlighting – Use a marker to highlight key passages in transcript and documents you want the mediator and the other side to focus on.
  • Make your written submission as “user friendly” as possible
    • Exhibit tabs
    • Fasteners
    • Covers
  • Client involvement
    • Ask your client to review your submission for accuracy.
    • Ask for suggestions and input to improve the material.
    • When the other side’s summary arrives, provide a copy to your client to prepare them for what they will hear during the mediation process.
  • Decide whether to include a dollar figure and at what level
    • Consider whether you have previously made an offer/counter-offer.
    • Will a written figure assist the process or antagonize the other side?
  • Consider whether to provide the mediator with something in writing on an “eyes only” basis. For example,
    • Disclose underlying needs and interests of client.
    • Disclose your theory of the case for trial.
    • Raise concerns you’re not yet ready to share with the other side but believe the mediator should know.
  • For additional tips, see https://www.starkmediator.com/articles-links/crafting-effective-mediation-summary-tips-written-mediation-advocacy/

Work with the mediator to assist you in achieving an acceptable resolution

Mediators hope to assist both sides in finding a resolution each will find acceptable. They pride themselves on being neutral, objective and unbiased. Enlist their help directly in working with you and your client to remove impediments, appreciate risk, enhance understanding and explore acceptable options to settle.

  • Contact the mediator after receipt of the other side’s summary to discuss issues that might be important in the run up to mediation.
    • Review party relations
    • Review counsel relationship
    • Consider reaction to opposing counsel’s summary
  • Discuss the need for assistance with your client if that would be helpful
  • Do you have a suggestion for a technique or approach the mediator might attempt?
  • Ask the mediator’s advice on important issues
  • Determine how you and the mediator can work best together.

Introduce your party to the mediator on the day of mediation

Building trust and establishing a productive relationship with the mediator are significant building blocks in the success of a mediation. If not offered by the mediator, ask for a private meeting to introduce your client to the mediator and begin to lay the foundation for a successful relationship.

  • First, however, review your client’s opening remarks once more and insure the message to be delivered in joint session is constructive and persuasive, suggesting changes or tweaks as warranted.
  • Prepare parties for competitive or ill-considered offers and counter-offers by anticipating unproductive opening offers or counter-offers.
  • Develop a thoughtful, well-prepared offer/acceptance strategy to follow to avoid being pummeled or influenced by emotional reactions to the other side at the table.
  • Remind your client how mediation advocacy will be different from traditional zealous advocacy – especially that you will not be as zealous or aggressive during the mediation process.
  • Share your litigation budget:
    • Bring time records or summary & costs to date.
    • Estimate future legal fees and costs to date of trial.
    • Estimate the costs and fees of a trial.
    • Estimate the time frame, costs and fees of an appeal.
  • If the mediator doesn’t provide, ask for a private “get acquainted” meeting.
  • Introduce your client to the mediator and start building a relationship, gaining trust and establishing credibility.
  • Ask the mediator’s assessment of the other room and what may be happening.
  • Establish your own rapport with the mediator.
  • Ask for the mediator’s advice as a negotiation coach.

Let the mediator do his/her work

The mediator is not an impediment to resolution or a hurdle to settlement. Mediation is entirely voluntary. The mediator is not going to force a settlement on you or your client. You’ve selected the right mediator for your claim. Accordingly, permit the mediator to approach the dispute in his/her own way without interference.

  • Allow the mediator to engage with your client.
  • Make certain the mediator understands your theory of the case.
  • Be ready to share the strengths of your case with the mediator.
  • Decide which weaknesses to disclose and how to do so.
    • Prepare answers for weaknesses likely to be brought out by opposing counsel.
    • Determine the extent of disclosure to the other side.
    • What is the likelihood of trial? (In Michigan in 2017, only .9% of all filed cases went to trial.) If the likelihood is small, is it worth saving anything for trial when it might lead to a better settlement?
  • Be candid with the mediator – Ask the mediator to keep confidential anything you wouldn’t want disclosed to the other side
  • Encourage party flexibility:
    • The valuation of a claim depends on the known facts, the legal precedents, the orientation of the judge, the attitudes of jurors, the credibility of witnesses, the admissibility of evidence, the risks presented, etc.
    • Mediation is an excellent vehicle for the transfer of information, hearing new things or seeing them in a fresh way, and a better understanding and appreciation of risk.
    • Accordingly, if you’ve been paying attention and listening throughout the process, your valuation of the claim should be different at the end of the day from what it was the night before.

Steps in the event the case settles

  • Draft a memorandum of understanding
  • Alternatively, bring a Settlement Agreement & Release of All Claims form with boilerplate to the table to fill in the blanks and be done.
  • Draft with specificity.
  • Do NOT leave the premises until everyone has signed a binding and enforceable settlement agreement! Too often participants go back to their homes and offices, talk to others who were not part of the process and did not hear the risk or cost discussions, and start to experience buyer’s or seller’s remorse.

Steps if the case doesn’t settle

  • Discuss next steps and whether additional negotiations/mediation is in order.
    • If early, what discovery should be pursued?
    • Should the parties narrow discovery to prepare the dispute for further negotiation/mediation?
    • What facts/discovery will it take to persuade the other side that resolution is in their client’s best interest?
  • Request mediator follow up:
    • Develop a time frame: a week, a month, 3 months for the mediator to check in and see whether additional efforts might bring the parties together.
    • Discuss what needs to happen if further progress is to be achieved.
  • Pay the mediators invoice!

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