Most civil disputes will be resolved before trial,1 and mediation has become one of the most important phases of every lawsuit. Even so, the informality of mediation induces many less-experienced litigators to take a casual attitude toward the process. Too often, lawyers approach mediation as if it were the easiest phase of a lawsuit; this is serious mistake. If pleadings, discovery and motion practice warrant hours of planning, thought and effort, why treat mediation any differently?
Thoughtful preparation gives mediation the greatest of chance of success. A checklist can be a valuable tool. The following points are offered for consideration:
- Have I spent an appropriate amount of time selecting a mediator? Past experiences and name recognition are two popular methods for selecting a mediator, but time should be spent assessing whether a particular mediator’s background, expertise and related qualities will make a difference in your particular case. Too often, the first mediator available on counsels’ calendars is the one chosen. Rarely are reference checks conducted. Why not take the time to select a mediator who will have the greatest credibility with your client? Think about speaking with each candidate to assess whether that person is the right fit for your case. Spending thoughtful time up front will pay dividends later.
- Is my mediator’s brief actually brief? Mediators often want introductory statements from counsel regarding the dispute, the personalities, and the history of settlement discussions. It is common for a written submission to be supplemented by a private telephone call with the mediator before the parties gather. But you are not hiring a fact-finder; bombarding the mediator with copious evidence and string citations to buttress your arguments generally will be unproductive. If the complexities of your case require that a mediator work through binders of exhibits to understand it, and you don’t mind paying for an extra day or two of the mediator’s time, then go that route. But that extra time and expense are rarely necessary, and the presumption favors brevity. Take time to focus your brief on the keys to settlement.
- Have I shared my mediator’s brief with opposing counsel? Excited by the prospect of a devastating surprise at a trial, counsel too often conceal “killer” evidence from the other side. But what is the chance you will actually go to trial? If you do have a basis to destroy your opponent’s case, mediation is the time to share it. Of course, if the matter is confidential, then discuss that privately with the mediator. Remember that the purpose of mediation is to find a solution, so work with your mediator to capitalize on weaknesses in your opponent’s case. And that generally means disclosing critical information the mediator can use in forging a compromise.
- Have I been candid with the mediator? “Puffing” about your case is one thing, but there is a difference between expressing confidence and falsifying or burying the truth. If you are not prepared to speak truthfully about a topic, then don’t speak at all. Don’t “plead poverty” unless you are prepared to prove it. Don’t pretend your client would rather pay attorneys’ fees for continued litigation than reach an accommodation. Being truthful will help the mediator understand the dynamics of your case, and it will enhance the prospect of moving the parties toward an amicable resolution.
- Have I set aside enough time for the mediation? A half-day mediation generally means one of two things: The parties are primed for a settlement, have already had serious conversations, and need only a modest push toward resolution or the parties aren’t serious and are just going through the motions. If resolution is the objective, then carefully assess how much time will be required and schedule it up front. If you were not able to settle the dispute on your own, what makes you think a mediator can perform magic over the course of a few hours?
- Have I accurately assessed the liability and damages in my case before going to mediation? Mediating with only a vague notion of what your case is worth will waste a great deal of time. Consult with partners, mentors or colleagues you trust, and develop a solid basis for your conclusions beforehand. Consider using a decision tree to evaluate the probability of success. Be sure you have good reason to think a judgment will be collectible (or indemnifiable, if you are a defendant). Know your game plan if the case doesn’t settle, and make sure your client is on board with it.
- Do I have the decision-makers lined up to attend the mediation? Make sure the person(s) with true settlement authority will be available throughout the mediation. Ensure the decision-maker is ready to work toward a resolution. Few things are as counterproductive as learning in the middle of a mediation that a key player needs to leave. If it is necessary for someone to participate by phone, then ensure that the mechanisms are in place to make that happen. When the terms of an acceptable settlement finally are on the table, make sure the deal can be accepted by those in attendance.
- Have I managed my client’s expectations? Compliance with the new provisions of the Code of Civil Procedure is mandatory, but in addition, take the time to work with your client and design a realistic strategy for a resolution. Dispel any notions that a “win” is imminent if your client can convince the mediator your cause is just. Remember that the objective is to find an accommodation both sides can accept, which is the antithesis of capitulation. Get realistic and think about what might be possible.
- Would a joint session be beneficial? There are cases in which the parties have no appreciation for what is at stake for the opposition. Consider that a cathartic moment can be orchestrated by the mediator. A joint session (with all statements of the parties and counsel directed to the mediator, without interruptions) can set the stage for private caucuses to craft the outlines of a settlement. Worry less about inflaming your client’s emotions, and consider that a skillful mediator will help you manage the process to avoid any negative consequences of a joint session.
If you carefully work through the foregoing points, the chances of a successful mediation will be enhanced. The goal: Extricating your client from an intractable, costly and emotionally taxing dispute. Given that a resolution without trial is a virtual certainty, why not spend the time preparing for mediation by treating it with the same seriousness you give the other phases of your case? Nothing is more likely to produce a contented client. And it is often the contented client who brings the next matter in your front door.
Article written by JAMS neutral Charles H. Dick, Esq., an experienced dispute resolution professional with over 25 years of experience as an arbitrator and mediator. He specializes in the resolution of a wide array of complex disputes, including antitrust, business and commercial, securities, employment, personal injury and professional liability issues.
While there no doubt are many reasons why a given suit will never proceed to trial, a 2018 report issued by the Administrative Office of the U.S. Courts stated that less than 1 percent of 286,585 case dispositions were the result of trial. See
Federal Judicial Caseload Statistics 2018 Tables, Table C-1, https://www.uscourts.gov/federal-judicial-caseload-statistics-2018-tables.