Top Ten Tips for Successful Mediation
By Paris K. Kallas and Charles S. Burdell
Attorneys often ask for suggestions on the best approaches to mediation. Here are ten techniques routinely used by attorneys who achieve good results for their clients at mediation.
1. Prepare. Prepare. Prepare.
There is no substitute for thorough preparation. As any mediator will attest, prepared attorneys succeed at mediation. Thorough preparation includes a full understanding of the facts and governing law. But it also includes considering other factors, such as which mediator to choose, the timing (is your case a candidate for early mediation?) and whether your client is emotionally ready (an especially important factor in matters involving families). Thorough preparation includes conducting sufficient discovery (informal or otherwise) to allow a realistic evaluation of the case. It also includes determining whether additional documents should be gathered and compiled, not just to establish your position but also to respond to the other side’s concerns. Finally, thorough preparation includes a realistic assessment of the strengths and weaknesses of the case and a candid discussion of those strengths and weaknesses with your client.
2. Prepare your client. And yourself.
Attorneys perform many roles, from advocate to counselor. When preparing for mediation, an attorney should step back from the advocate’s role and engage in a candid and realistic assessment of the case. What is the client’s overall chance of success? Which obstacles stand in the way of success? What is the range of likely outcomes? Candidly discuss these questions with your client before the mediation. Explain the mediation process and that mediation necessarily involves compromise, often substantial. Explain to your client that “victory” does not happen at mediation; if winning is the goal, the case should proceed to trial (remembering “victory” at trial is never certain). With that in mind, brainstorm and consider all possible settlement options, especially those that would not be available through litigation. It is equally important to explain the advantages of mediation. Take this opportunity to explain that mediation allows client input and control; if the case goes to arbitration or trial, someone else decides the client’s future. Finally, discuss costs with your client. Be sure your client knows exactly how much she has spent to date and how much more she will spend if the case doesn’t settle. Help your client calculate the cost of not settling. How much energy will be devoted to ongoing litigation? How much time will be diverted from running the business? What is the impact of delaying sale of the family home? Take all steps needed to ensure that your client fully understands all options on the table as he considers settlement.
3. Choose the right mediator.
Our region has a wealth of talented mediators. Enjoy this wealth and choose the right mediator for your unique case. Consider whether the parties would respond better to a collaborative or to a directive approach. Would the parties benefit from a mediator with extensive experience in the subject matter area? Does your client need to tell it to a retired judge? Does someone need to hear it from a retired judge? If the mediation arises post-verdict, consider whether settlement efforts would benefit from a mediator with appellate experience. Consider these, and similar questions, in choosing the right mediator.
4. Decide the best timing for mediation.
Because each case is unique, there is no hard and fast rule as to the best timing for mediation.
Early mediation provides numerous financial benefits, including savings in costs and attorney fees. It also minimizes the distraction and disruption of ongoing litigation. It allows businesses to get back to work and families to begin to heal. And pre-filing mediation provides the additional benefit of privacy by resolving the matter outside of court.
For early mediation to succeed, the situation should have stabilized so that the facts may be fully understood. Is the family ready to sell the house? Has the plaintiff’s medical situation reached maximum improvement? Early mediation also requires that the sufficient, core discovery (informal or otherwise) be complete. Does the investigating officer’s report sufficiently describe the incident? Has the lead expert (rather than all five experts) been deposed? Are the financial documents available for review? Only when the core, necessary discovery is complete do the parties have confidence to proceed with early mediation.
If unable to schedule early mediation, consider other factors in determining the right time to mediate. Consider what discovery is needed, both for your client and the other side, before the parties may consider settling. Consider also whether mediation should occur before or after motions for summary judgment and other definitive pre-trial motions.
5. Prepare the mediation submission to convince the other side.
Prepare the written mediation materials with the opposing party in mind. Anticipate and address the other side’s concerns. Remember that providing hard documentation strengthens your bargaining power. If expenditures are at dispute, provide the invoices and proof of payment. If your client claims financial instability and lack of assets, submit the proof. Consider providing a certified statement from a knowledgeable accountant or an attorney-eyes-only financial declaration. If wage loss is an issue, provide the relevant records for review.
Recognize the other side’s interests and show how your position makes good sense for both sides, not just yours. If the opposing party is a sophisticated business, prepare the materials to convince the CEO and Board of Directors that your offer results in a good business decision for them. If it makes financial sense for one spouse to keep the family home, submit the supporting financial data. Brainstorm about the other side’s concerns and how the concerns may be addressed.
Remember that tone matters. While it is appropriate to address the other side’s weaknesses and risks, do so with respect. The written submission should be a persuasive, but polite, explanation that it is in the other side’s interests to settle. Insults rarely facilitate settlement.
6. Exchange mediation submissions.
Generally, parties should exchange the written mediation submissions. Ensure that your client reads not only your materials, but also the opposing party’s materials. The opportunity to reflect on the other side’s position creates a more productive discussion at mediation. If your client wishes to keep certain information confidential, that information may be addressed in a separate letter to the mediator.
Exchanging written submissions make particular sense in personal injury actions where a lien exists against the plaintiff’s recovery. Because the lienholder’s refusal to compromise may prevent settlement, it is in everyone’s interests for the defense to provide plaintiff with its mediation statement so that plaintiff may provide it to the lien holder (with defense permission). This exchange allows the lien holder to understand the risk of litigation and provides incentive to reduce the lien.
7. Secure the appropriate decision maker’s participation.
Too many mediations fail because the person with authority is not at the table. Because mediations take time and because each mediation has its own pace, it is difficult to persuade someone to settle if that person has not participated in the mediation process.
8. Keep sight of the non-financial components.
Many settlements include non-financial terms such confidentiality, remediation, letters of recommendation, non-disparagement agreements, and tax consequences. Be creative and consider such methods to settle your case. If re-employment is not an option, consider what language the employer could use to explain the employment gap. Don’t wait too late in the mediation to raise these non-financial terms. Although often perceived as secondary to monetary terms, non-financial terms are important and should be raised early enough to be included in the core negotiations.
9. Be patient.
Although an efficient way to resolve disputes, mediation can be time-consuming, frustrating, and emotional. Expect these hurdles and be prepared to work through them. Understand your client’s interests and convey them to the mediator. Remain firm, but not insulting. Acknowledge the other side’s interests and create momentum by giving where you can. Listen with an open mind and remain receptive to creative solutions that address all parties’ interests. While the mediator’s message may not always be well-received, remember that the mediator is working hard to show both sides their risks and areas calling for movement. Stay at the table and allow the mediator to guide the parties through the hurdles.
10. Close the deal.
Once the parties reach settlement, the key terms should be recorded in writing and the parties should sign the writing. Too often, this important works begins at the end of mediation, when parties and counsel are tired. This creates problems, including omitted terms (payment date) and disputes about finalizing the settlement (how to exercise the right-of-first-refusal). These problems can be minimized by bringing a draft settlement agreement to the mediation. As the parties reach agreement on certain terms, counsel should edit and tailor the draft settlement agreement to conform to the settlement. This practice ensures that key concepts are included and that key language (such as the scope of a release), is addressed and resolved while everyone remains at the table. Finally, consider appointing your mediator to serve as arbitrator to resolve any disputes regarding interpretation and implementation of the settlement agreement.
Paris K. Kallas and Charles S. Burdell are panelists at Judicial Dispute Resolution, LLC. Both are retired King County Superior Court judges who now serve at JDR as mediators, arbitrators, special masters, and consultants for trials and appeals.
