Zela G. Claiborne
On MEDIATION
In my role as mediator, I have been fortunate to work with many skilled lawyers who understand how to use the process effectively. Although these lawyers may take different approaches to mediation advocacy and, certainly, have different styles, they share an understanding of the skills and techniques required for successful mediation:
Thorough Preparation
As you know, preparation is the key to a successful negotiation. Know the law that governs the central issues. Know the facts of your case. Become familiar with the significant documents and talk to the important witnesses so that you know what their testimony will be. Before mediating, confer with consultants or experts to obtain their opinions and evaluations. Especially in a large and complex case, the parties will not be willing to pay vast sums to settle if no expert analysis has been completed. Spend money to prepare for mediation and save money on discovery and the litigation process.
After completing this ground work, you will be able to prepare an effective brief that outlines the law and the significant facts of your case. Also, you can prepare visuals to make your case clear and understandable. Remember that, while you must communicate the case to the mediator if the process is to succeed, it is at least as important to communicate your case to the decision-maker on the other side. That person may be the President or CEO of the company who, until the mediation, may not know the details of the case. In order to reach a successful resolution, you must outline your case clearly and impress that decision-maker with your client's view of the case.
Calls to the Mediator
Since the usual ex parte rules do not apply in a mediation context, I encourage counsel to talk with me before the mediation. Most lawyers welcome this opportunity. Not only can they outline their case and discuss sensitive points that they may wish to keep confidential, but they also can identify their client's decision-maker and discuss individual points of view on the case. If there are diversity issues or personality conflicts, they can be discussed in advance, too. Of course, this step can be accomplished at the mediation, but a pre-mediation discussion usually leads to a smoother and more efficient process, especially in a complex case.
Sometimes, particularly in a sensitive or highly contentious case, these pre-mediation discussions can lead to the establishment of ground rules for the mediation. This process increases the chances of settlement because all parties are involved in developing procedures which can be tailored to the particular case.
Limit on Discovery
Most cases can and should be mediated before discovery is complete. A good approach is to mediate after documents have been produced but before depositions are taken. Once extensive discovery has taken place, settlement becomes more difficult because party representatives will have hardened in their positions. Also, after a lot of money has been spent on discovery, settlement will be more expensive.
That said, it may not be possible for the parties to settle without knowing what the testimony of one or two key witnesses will be. In that situation, mediation will be more likely to succeed if those depositions are taken and then followed promptly by the mediation. Keep in mind, however, that this approach can be dangerous. While discovery may improve your case, it also may improve that of your opponent. Further, the longer discovery continues, the more disenchanted your client may become with the process and, maybe, even with you.
Even if most discovery is completed before the parties can agree to mediation, do not give up. Remember that a late mediation - even on the courthouse steps - will be less expensive than trial if you can reach settlement.
Selection of Participants
Limit the number of people you take to mediation. A large delegation will slow the process because everyone will want a say. Also, participants will tend to reinforce each other in taking the party line, making settlement difficult.
Further, when you take the person most involved in the case to serve as your client's representative, you run the risk of being unable to settle. That person may be locked into a particular point of view, may be unable to hear or fairly evaluate the other side's case, and will not want to admit to any wrongdoing or mishandling of the situation. Instead, take someone who can be flexible in responding to information presented by the other parties at the mediation, can objectively evaluate the case, and can make a sensible business decision about the resolution of the dispute. A decision-maker who will speak in terms of issues and litigation risks while keeping emotions under control will increase the chances of settlement.
My next column will continue with more tips for effective mediation advocacy.
Ms. Claiborne is a mediator and arbitrator on the National Oster of the Amercian Arbitration Association.
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