10 Steps for “Working” the Mediation Process
Karin S. Hobbs, Attorney/Mediator
Your attorney tells you to “set this case for mediation.” How can you assist? Should you start by spending hours finding a date that works for the attorneys and then call to find a mediator who can mediate on that date?
The short answer is “No.” You can be much more helpful to the attorney and your clients if you follow these steps.
Step 1: Talk to the Attorney. Mediation is a flexible negotiation process in which the attorneys and the parties select a person to help them settle the case. If you play your cards right, the case will settle and the clients will be satisfied. Legal assistants and secretaries are often on the front line of scheduling mediation and yet they have little information to assist them with this task. Ask the attorney about the timing of the mediation. Do all parties and their attorneys have sufficient information or is additional information needed? Is discovery necessary before the parties can really discuss the case or can discovery wait until after mediation? If the case is not ready, ask what you can do to get the case ready for mediation. In the meantime, ask the attorney what style of mediator he/she and the client find most helpful. The well-known lingo in mediation is that mediators run the range from facilitative (the messenger), to analytical (discussing the legal issues) to evaluative (emphasizing the weaknesses to both parties and, if necessary, evaluating the viability of the claims). Most attorneys avoid mediators who are “just messengers” and hire “closers,” or mediators who proactively work on both sides to reach a settlement. The mediator may also need skills to deal with emotional, recalcitrant or entrenched clients. Don’t forget to also ask the attorney what he/she believes the other side needs in terms of mediator skills.
Step 2: Do Your Homework on Mediators. While gathering the information, begin to research mediators. Interview them and check out their web sites. Find out what people are saying about the mediators on the street and in list serves. Ask how many cases they have mediated and how long they have been mediating. Ask how many cases they generally mediate per week or per month to get a sense of their experience. Ask about whether they have attorneys make opening statements, and, if so, how they avoid opening sessions that waste time or escalate the case. Ask whether they want the parties to exchange mediation briefs. You will be able to evaluate their experience and expertise in mediation based on their responses to these questions. Do you need a heavy handed “settlement conference” in which a retired judge “tells” you how he thinks the case will come down? Or, do you need a person with quick analytical skills, the ability to deal with difficult personalities, and a proactive negotiation approach? Do you need the mediator to have expertise in the subject matter or can the attorney provide the legal backdrop? What mediator will have credibility with both sides? What type of person can read the between the lines and help the parties find new ways to explore settlement? Will the mediator tailor your case to the needs of the parties? Will the mediator prepare in advance to save the clients’ time in mediation? Will the mediator design a process that minimizes wasted time for both sides such as starting with one party at 9 a.m. and the other party at 10 a.m. before holding a joint session? Find out what the mediator does when it is 10 p.m. and the parties are balancing momentum and continuing the mediation process while experiencing mental and physical exhaustion. All mediations are different and should be tailored to fit the case. After you select the mediator, determine if you should arrange the mediation or if the mediator wants to design the process with the attorneys.
Step 3: Prepare Your Attorney. Attorneys should prepare for mediation thoroughly. They should know the disputed and undisputed facts of the case, the key evidence and the relevant legal authority. They should be prepared to discuss the pros and cons of the lawsuit with the client and the mediator, the possible outcomes in court, and the problems they may encounter in the case. They should calculate damages and have all back-up documents available to justify their claims. Attorneys should also know their clients’ goals and the acceptable range of settlement. Drawing lines in the sand is not helpful. All files, documents, letters, pleadings and evidence should be indexed for the attorney and the client. Frequently, one party arrives at mediation organized and the other party notices whether his/her attorney is more or less prepared. Avoid having the attorney shuffle through documents. If appraisals or other external measures are needed, obtain that information in advance of mediation. Exchange as much information as possible with the other side prior to mediation so that attorneys are not synthesizing new relevant and important documents during the mediation process. The attorneys should arrive at mediation with as much information as possible so that they can begin the negotiation process.
Step 4: Prepare Your Mediator. Provide the mediator with a mediation statement. The mediation statement should include the undisputed facts, the disputed facts, the legal issues, the procedural posture of the case, the status of negotiations, the underlying goals of the parties, and the dynamics and pressure points of the case. Most importantly, the attorney should inform the mediator, perhaps in a telephone call, about any other issues affecting the case, such as client control issues, unprepared or misguided attorneys, misinformed clients, missing information, assistance needed with discovery, and any other items that may impact the negotiation. Many experienced mediators, particularly in complex cases, call attorneys prior to mediation to obtain a general sense of the legal issues, confer regarding who should be present, and any other issues the mediator needs to know. Attorneys and legal assistants should know the “rest of the story” or the portion of the case that could not be couched in legal terms is generally extremely relevant in mediation. Cases settle based on the clients’ underlying interests, goals and objectives. Why are they bringing this lawsuit? Why does the other side disagree with the claims? Is there a relationship? Dynamics such as these are indispensable facts for the mediator. Let the mediator know if there is anything you would like him or her to say to the parties in the mediator’s opening statement.
Step 5: Prepare Your Client. Provide your client with the information you have provided the mediator. Explain the mediation process to your client. Explain whether or not the client will sit in a conference room with the other side, whether the client will tell their story, and whether the client will need to speak or just be a good listener. Prepare your client for long periods of down time, and suggest they bring a magazine or book to read. Inform the client that cases settle because both parties compromise. Generally, when a case settles, both sides have moved more than they wanted to move, but they are glad to have the case concluded, the litigation over, and the attorneys’ fees valve turned off. Prepare the client for the negotiation process. Don’t create bottom lines. Prepare your client to look at mediation as an opportunity to learn, an opportunity to be creative, and an opportunity to resolve the case. Generally the mediator will talk to both parties and discuss mostly the weaknesses and not the strengths of the case with them. This puts attorneys in a difficult position of telling the clients the problems in the case while also convincing the client the attorney will work diligently and zealously on the case. Clients should also think about their tolerance for risk, the attorneys’ fees they may incur, whether they may have to pay the other side’s attorneys’ fees, and the emotional wear and tear the on both their personal and professional life.
Step 6: Help the Mediator Help Your Client. Mediators know attorneys want to look good for their clients. However, starting big if you are the plaintiff and small if you are the defense has its consequences. Be realistic and prepare your client to be realistic. When you anchor high or low, your client’s expectations also become anchored in the extremes. In addition, the process will take longer because the mediator will need to convince both sides to stay at the table, not be offended, and to sit back down. Starting high or low may also result in months of negotiations or stalled negotiations causing frustration to clients and attorneys. If you feel you must take this approach, at least discuss it with the mediator in advance and ask the mediator for his/her thoughts. This will at least allow the mediator to couch the offer in a way that is hopefully less offensive to the other side. Also, advise your client of the reasoning behind your negotiation strategy.
Step 7: Strategize with the Mediator. Effective mediation advocates arrive at mediation with a plan. Their plan, however, is flexible and can be tailored to new information. Frequently, attorneys learn new information in mediation and have to drastically alter their strategy. In addition, attorneys often learn new information from their own clients during the mediation process if the mediator is skilled in asking important probing questions. Prepare your strategy in advance and use the mediator during the process to package it so it sells to the other side. The mediator knows the temperature in both rooms and can help you make your offer more palatable to all participants.
Step 8: Be Patient with the Process. Mediation takes time. Clients and attorneys should bring laptops to check email and have magazines to read. When the mediator returns to the room, however, they must be prepared to turn off their cell phones and stop all emails and text messaging. Clients often feel neglected, and some even comment if their attorney is on their Blackberry or Treo during mediation. If the mediator is gone for a lengthy period of time, the other party obviously needed to hear a great deal from the mediator. The client in the other room may not have heard about the problems with their case, may not have prepared adequately, or may be extremely detail-oriented. Mediators generally spend more time in one room than the other. They don’t do so to waste time. They are working to find solutions or ranges that both sides can swallow.
Step 9: Listen to the Mediator. During the mediation process, the mediator will provide the attorney and the client with clues. Listen carefully and read between the lines. The mediator may not tell you the other side is frustrated, angry, stubborn or ready to fold, but you can generally ask the mediator if he/she can tell you about the conversations in the other room. Prepare your client to actively participate in settling the case. Clients are satisfied when they can play an active role and are not silenced during the process. If you don’t want your client to reveal something, let the client know. However, the mediator needs to develop a rapport with the clients so that the clients can trust the mediator to work hard on the case.
Step 10: Prepare Settlement Agreements in Advance. Prior to the mediation conference, try to prepare as much of a draft settlement agreement as possible. Have the attorney bring a laptop to the mediation so that the parties can enter into an enforceable signed settlement agreement. Mediation is confidential. If an agreement is reached, the parties will be well served if they are prepared to enter into an agreement closing the case. Mediation can be a rewarding process for attorneys and clients who understand the process, and who plan, carefully choose the mediator, and prepare for closure.
