For any even modestly seasoned litigator, the mediation process is recognized as a staple element in the life of any litigation. Even where the parties may see little value in mediation, virtually all court rules now mandate mediation or some other form of ADR prior to trial. In other courts, judges strongly “encourage” litigants to mediate which in essence becomes a directive to mediate.
Practitioners appreciate that many civil cases resolve at or through the assistance of mediation. This dynamic, combined with the reality that mediation remains part of the fabric of the litigation process, would suggest that tremendous effort should be placed in the potentially dispositive process of mediation. Why does it remain, then, that a more than small percentage of attorneys remain underprepared for mediation?
Perhaps the perceived shortcomings in the area of preparation for mediation rest not in a lack of effort, but rather in a lack of proper focus. With one exception, the balance of this article evaluates topics lawyers should be addressing in preparing for mediation.
First, the exception. Whether in pre-mediaion submissions or in preparation for mediation presentations, attorneys earn the highest marks for pulling together the facts and the law for their cases. We, as a group, have been well-trained since the first year of law school to marshal facts and the law. Many pre-mediation submissions read like well-honed summary judgment briefs. Practitioners require no assistance or encouragement on this necessary and vital aspect of preparation. Kudos to counsel in these regards and we need not spend more time on that topic.
However, mediation preparation begins well before compiling facts and applying legal precedent. One fundamental consideration is selection of the appropriate mediator for the dispute. Factors to consider in selecting a mediator include the necessity of legal subject matter expertise; knowledge of the local court system or judge; understanding of business relationships; the need for an empathetic or finessed approach versus a heavy handed style; and even schedule and availability concerns. These factors are not exhaustive and are not mutually exclusive. Note that some considerations focus on the legal issues and litigation dynamics while some focus on the personalities involved. Regarding personality issues, consideration must be given to not only the clients, but also the participating lawyers. A candid evaluation of relationships, egos, and eccentricities will assist in securing the right mediator for your dispute.
The pre-mediation submission is essential as a tool to ensure that many topics are adequately addressed prior to the mediation itself. Any pre-mediation submission should be used to frame the essence of the dispute while conveying data to educate and guide the mediator. Most mediators request specific information in any pre-mediation submission. My standard request of attorneys is as follows:
“Pre-mediation submissions should be received by me at least two (2) business days prior to the mediation. Pre-mediation submissions shall remain confidential and should not be shared with the opposing party(ies). The pre-mediation submission should include: 1) summary of facts and issues; 2) candid evaluation of strengths and weaknesses in your client’s case; 3) calculations of damages and/or description of other relief sought/available; 4) estimated litigation costs through trial; 5) summary of settlement efforts and positions to date; and 6) other relevant information you believe may assist the mediator (e.g., client’s expectations, business needs, insurance issues, monetary concerns, etc.).”
Of these topics, let me focus on the the description of relief sought. Monetary damages are typically readily presented, and usually well supported. Yet, other relief may be viewed as critical. These issues should be called out for early consideration. A party may well seek or demand injunctive type relief even where such relief would not be available in court (e.g., party A agrees never to seek employment from party B or its affiliate organizations; a mutual press release must issue announcing resolution of the dispute; or the parties agree to re-establish or refrain from future business dealings). The attorney should be aware, before the mediation, if the client will demand or seek these extra-monetary resolution terms. Only then can the practitioner determine when and how to disclose these issues and control how they will be in play. If disclosed early in the process, stakeholders can fairly place value on such terms and be prepared to address them.
Similar to pre-mediation submissions, pre-mediation discussions between counsel and the mediator can only assist the mediation process. Not all mediators utilize pre-mediation discussions, but I suggest that virtually no mediator would refuse your pre-mediation call. I encourage the practice of pre-mediation discussions. There may well be sensitive factors an attorney does not wish to be disclosed in writing, but which may be more freely shared in a telephone call. A classic example of such information would be identifying the client with unreasonable expectations regarding case worth. There may be personality or safety concerns in bringing together stakeholders. There may be monetary or compensation concerns involving the attorney-client relationship. If such issues are raised through pre-mediation discussions, the mediator can better prepare to address such challenges. As a mediator, I universally learn information pertinent to securing settlement through these discussions.
Next, prepare your client. While the mediator will explain the process at the beginning of the mediation, it will assist if the client is generally knowledgeable. Please note that mediation is oft-times a day long process with periods of downtime for each side. The client needs to understand that the process is confidential and voluntary and that mediation requires compromise.
In preparing to mediate, also give thought to mediation participants. Most fundamentally, ensure that participants possess the authority to bind the client on both economic and non-economic terms. There should be some perceived balance of power among participants to avoid unnecessary ego issues. In some instances, remote attendance by telephone cannot be avoided. Attempt to best ensure the continued availability of the remote attendee. If any participant requires accommodation or possesses special needs, advise the mediator in advance so that proper arrangements can be secured.
Finally, anticipate the form of any settlement where more than simple economics terms may be at issue. For example, a party may “need” settlement sums to be issued quickly or even delayed until a new tax year. One party may demand payment through a continued business relationship. A party may demand confidentiality. Note: A subsequent article in this series will explore in greater detail these and other mediation settlement structure issues. The point for mediation preparation is simply that if such terms must be part of the resolution, they should be evaluated at the outset to allow the parties the opportunity to value them appropriately.
While there is no “one size fits all” approach for mediation preparation, as discussed, any preparatory steps should at least include:
* Selection of an appropriate mediator
* Development of the pre-mediation submission
* Pre-mediation confidential discussions with mediator
* Selection of client representative/decision makers
* Setting client expectations for the mediation process, and
* Consideration of non-economic settlement terms
Prepare well for your next mediation!