Amy Dunn Taylor | Framing Issues
This article launches a five-part series on Effective Mediation Techniques for Complex Cases. However, many of these same tactics can be deployed mediating most any type of case. I define complex cases in a number of ways including the complexity of the legal questions at issue, the stakes involved, or just the sheer number of parties in the case. Part one of this series will focus on Mediation Logistics. Future articles will address the timeline and mechanics of mediation, the parties themselves, the education of the parties and all stakeholders at the table as well as that of the mediator, and finally, the mediation day itself.
The Logistics of an Effective Mediation
There are a number of reasons to mediate complex cases. These include the time investment inherent in litigation, the financial and emotional costs attendant to preparing for and trying a case for trial, and the uncertainty of the outcome. In addition, parties may seek settlement as a means to find closure and end game certainty or they may wish to preserve personal and business relationships that are precious. No matter the motivating factors, there are certain keys to assuring that the process is given considered thought in order to maximize success.
In my experience handling mediations on behalf of a client and especially in my experience serving as a mediator, there are a number of common errors that lawyers make in preparing for mediation. These include the following:
- Insufficient objective evaluation of the case;
- Failure to make a persuasive, competent case in the joint session;
- Failure to fully support or vet the damages claim and the supportive proof for each element
- Failure to establish the transactional cost of a judgment including attorneys fees and all expenses;
- Failure to realistically assess the risk of an adverse judgment;
- Failure to keep greed and ego out of the decision making process and those driving the decisions; and
- Failure to remain objective so as to avoid polarizing the other side.
So what logistics matter? The most significant ones are the timing of the mediation and the choice of the mediator.
Timing of Mediation
I have long believed that there are several critical intersections in the life of a case where mediation has the best chance of success. What seems to drive this success best is when the parties have sufficient knowledge of the case in order to meaningfully evaluate the facts, the law, the damages and most importantly, the risk. In a simple, relatively low damage case, this point may come early in the process after the initial pleadings are filed and some written discovery has been exchanged. Consideration of the costs involved from the standpoint of the time investment required and the emotional and financial toll on the parties seem to make these cases ripe for an earlier resolution. More complex cases may mean that another intersection occurs following these same events along with the depositions of the parties. Other more complicated cases may require the hiring of experts and the issuance of their reports prior to expert depositions in order for settlement options to crystallize and make resolution timely. The one thing that is certain is most civil cases settle prior to trial but the continuum of settlement intersections requires careful thought be made at the beginning of the case in order to develop the case and seize the right moment for maximum mediation success.
Another important factor that influences the timing of the mediation is the cost of litigation and the consequent exhaustion of resources whether those be time, monetary costs or emotional upheaval. The trick is making sure you know enough about the case to meaningfully evaluate it and the risk of trial but not so much so that all those resources have already been exhausted. I like to see cases mediate once some discovery is done but the case is far from fully discovered. After all, mediation itself can be a discovery tool albeit one with limitations in terms of what you learn and how you can use it.
Another factor in timing a mediation just right is fixing it early enough in the process that it does not interfere with the countdown to trial should the case not settle. More on this in the next article but suffice it to say that one should leave plenty of time for any unexpected twists and turns that may be revealed at mediation for the first time so those can be dealt with sufficient time ahead of trial.
Selection of the Mediator
I am of the belief that in most cases, as long as you have selected an effective and objective mediator, it matters not who that person is. As an attorney representing a party at mediation, I usually try to defer to opposing counsel if at all possible to let him or her choose the mediator. Clearly though, one wants a mediator who will not be unduly influenced by any one party.
As a mediator, I think experience is critical because only with that experience, can a mediator help both sides identify and evaluate the risks of proceeding to trial. Said another way, a mediator needs to have had real life trial experiences in numerous cases, before numerous judges, and with numerous attorneys. I also think practical knowledge of the issues and the type of case is important. Finally, I think a mediator’s people skills are critical because you want a mediator who will listen carefully and can generate confidence and trust in all parties so that the questions the mediator asks get the ear they deserve on all sides of the negotiating table. A mediator’s deference to the messages he or she is entrusted to deliver, whether those be about the facts or the demands, offers, demands and counteroffers, is also important. An effective mediator will also be one who knows how to control the dynamics, the emotions and the politics so as to capitalize on reason and non-emotional decision making. Critically, an effective mediator must be able to adapt his or her style to every single decision maker in every room so as to keep everyone engaged in finding a solution.
As is obvious from this list, the mediator selection process is a complex but critical step in the mediation process. While the mediator does not make the decision of whether to settle the case or not, that person and their communication and messaging skills are essential tools that can help the process along or can thwart it.