Kent B. Scott | Babcock, Scott & Babcock
Corporate counsel, as well as outside trial counsel, have increasingly embraced mediation to resolve disputes. Many companies now incorporate mediation as part of their standard policies, procedures and documentation. Many court rules require mediation or some form of alternative dispute resolution before a case goes to trial. The reasons for this are obvious: mediation works.
Some Preliminary Thoughts
Many litigators still do not appreciate the subtleties and full range of the mediation process. They view it as a competition for the heart and mind of the mediator, thinking if they can persuade the mediator to their point of view through effective legal argument, the mediator will in turn prevail on the other side to throw in the towel.
But mediation is not a contest. It is a facilitated negotiation. While some evaluation of the merits by the mediator (usually in private caucus) is certainly part of the process, there is a lot more to it. The object is to get the other side to enter an agreement, not vanquish them. Changing roles from litigation advocate to the lead negotiator in a mediation does not come naturally or easily to everyone. Litigators should consciously try to adjust their attitude and put on their negotiating hat before embarking upon a mediation.
Mediation can be an exhilarating and rewarding experience for the lawyer because it provides the opportunity to be creative and intuitive and also to work closely with clients toward what is likely to be a positive outcome.
Selecting the Mediator
Mediators are not a commodity, and it is important to select the right mediator for your case. Ideally you would like to appoint a mediator who has both process skills and some familiarity with the subject matter of the dispute. Check references carefully and make sure you and your client have a good understanding of the proposed mediator’s particular style, experience and success rate. It is perfectly appropriate to interview the mediator and to ask the mediator about his or her particular approach, provided both sides are given the opportunity. Every mediation will be different, and you should look for a mediator who has the talent, experience and range of skills to manage the dynamics of your particular dispute.
A good mediator will know when it is best to be a patient listener, and when it is important to provide some guidance and direction. The mediator should have a well-managed ego, and not have the need to control the entire process. A good mediator will know when to stand back and let the process take its course. People skills are also important, as is stamina and the ability to listen patiently, and to do whatever it takes to close the deal. An effective mediator has to be a good closer.
The Mediation Position Statement
The mediation position statement is one of the best ways for the parties to help the mediator help them. I would encourage counsel to exchange mediation statements for a better understanding of opposing positions. Any confidential information to be considered by the mediator should be sent to the mediator confidentially. The mediation statement should be as candid as possible about the strengths and weaknesses of the case. Counsel should also include their best judgment as to the range of likely outcomes on both liability and damage issues should the matter go to trial. Items to be discussed in the mediation statement would include the following:
- status of the legal proceedings
- a statement explaining the factual and legal positions of each party
- attach key documents and pleadings
- A history of settlement negotiations
- the client’s interests, needs and expectations
- The identification of parties and counsel who will be attending the mediation
For a more complete description as to what to include in a mediation position statement, consult the Utah Mediation Best Practice Guide approved by the Utah Judicial Council on April 25th, 2016.
Preparing Opening Statements
Many lawyers squander the opportunity for an effective opening oral statement in mediation by simply saying they have very little if anything to add to their written mediation statement. Remember again that the object in mediation is to motivate the client on the other side to enter an agreement. The opening statement is the lawyer’s opportunity to give the client on the other side a preview of how the case may play at trial, and at the same time open some doors to the possibility of a negotiated agreement. Don’t start the mediation with your closing argument to the jury. Don’t make a bombastic speech that will completely alienate the other side. Remember that at the end of the day you hope to be able to shake hands with the other side on a deal. Convey the strengths of your case and the weaknesses of the other side’s case in your opening statement. But do so without personal attacks or inflammatory language. Indicate that you and your client, while confident about your position, are reasonable people and are willing to listen to and consider what the other side has to say.
Preparing for Private Caucuses
Most mediations involve private sessions between the mediator and each side. This is the opportunity for parties to collaborate with the mediator on strategies for resolving the case, and for the mediator to gain a better understanding of what the parties’ expectations and needs are. Most mediators, quite appropriately, will try to engage the client representative in a dialogue during these sessions. Often, this becomes an opportunity for the parties to “bare their souls” with the mediator about their concerns and expectations.
Make absolutely sure that you have a clear understanding with the mediator as to what the ground rules are as to the degree of confidentiality that applies to these private sessions.
It is unreasonable to expect that everything that is discussed with the mediator in these private caucuses will be kept confidential from the other side. Most experienced mediators will indicate to the parties that they will respect all confidential matters, but that the burden will be on the parties to identify that part of what is said in the caucus that must be kept confidential from the other side.
Mediator Evaluations and Mediator Proposals
Most parties at some point will want to know what the mediator thinks of their case, and also what the mediator thinks a fair settlement should be. Some input from the mediator along these lines can be helpful at the appropriate time if communicated privately. But be cautious about asking the mediator to make a proposal or pushing for a mediator’s proposal too early in the process. This is an impasse-breaking technique favored by some mediators whereby the mediator privately communicates a settlement proposal to each side
Closing and Documenting the Settlement
Think ahead of time about what terms you will require in a settlement agreement, such as a confidentiality agreement, and communicate any special provisions privately to the mediator early in the mediation. Anticipating issues such as this with the mediator before the economic terms of a settlement are agreed to is a good idea in most cases, because the mediator can then prepare the other side and avoid annoying roadblocks or potential deal killers that can arise in documenting the settlement.
You should not leave a mediation session in which a settlement has been reached without documenting the essential terms of the deal in language that confirms a binding settlement agreement is intended and providing in the settlement agreement that it is admissible to prove its terms notwithstanding any mediation confidentiality statutes or mediation confidentiality agreement. Usually, it is adequate to hand-write an enforceable settlement memorandum listing the essential terms of a binding settlement, but which states that it will be superseded by a more formal document which the parties agree to negotiate in good faith and in a manner that is not inconsistent with the essential terms.
Occasionally companies or governmental bodies will require a board approval for the settlement, which makes it difficult to sign a fully binding agreement at the conclusion of the mediation. Usually, it is enough for the employer’s representative to agree in the written settlement document that the settlement contingent only upon board approval, but that the representative commits to recommend that the settlement be approved by the board representative.
Conclusion
Here is a quick review checklist of practice points to keep in mind as you embark upon a mediation.
1. The goal of the mediation process is not to win, but to persuade the other side to enter an agreement on terms that your client can accept.
2. The key to success in mediation is careful preparation.
3. Exercise care in selecting the mediator. Know your mediator’s style.
4. Prepare your client for what to expect at the mediation.
5. Prepare a written have mediation position statement which is exchanged by the parties.
6. Include in the mediation position statement the issues of fact and law an argument supporting your client’s position . Also include key documents in pleadings as well as the clients’ objectives and interests.
7. Draft a settlement agreement before the mediation to use as a checklist of the terms you will need in the final document. Send to the mediator any special terms you may require so that he or she can help you negotiate them.
Remember, at the end of the day your mediation should be used to find a better alternative to a litigated result. Happy mediating to all.