Robert E.L. Wright
Mediation is increasingly gaining acceptance as the preferred method of Alternative Dispute Resolution (ADR) in Michigan courts. In my law school days, there were no courses on ADR, let alone on preparing for mediation. While mediation is no longer just the latest fad, there is still room to learn about effectively employing the process on behalf of our clients.
There are three phases in preparing for the mediation process: (1) counseling clients on the use of mediation; (2) preparing clients (or their representatives) for mediation; and (3) preparing the case (and yourself) for mediation. Having served as a mediator, litigator and arbitrator for several decades, I have collected some tips to help prepare clients for the day of the mediation.
A. Counseling Clients on Mediation
Unless court-ordered, the first step in counseling clients on mediation involves deciding whether to mediate. But even when the court orders mediation, knowing some basic facts about mediation can assist clients to understand the importance of the process.
Mediation facts:
1. Reduces cost and time expended to end disputes.
2. Settlement rates exceed 70% nationally.
3. Compliance rates (for mediated settlement agreements) exceed 90%.
4. Possible disadvantages of mediation:
• There may be no agreement, but even so, the range of issues may be narrowed and it could lead to a resolution a little later in the process;
• There is no binding outcome absent an enforceable agreement; and
• Mediation does not create any legal precedent and terms of a settlement may be required to be kept confidential.
Knowing these facts may not only give your client a better sense of the importance of the mediation process, it can instill hope for a successful resolution.
Other considerations to discuss with clients include:
1. Whether the case is “ripe” for mediation. Does the client (and their attorney) have sufficient information to make informed decisions in mediation and, if not, what more they need to learn? If not, mediators can adjust the scheduling to allow the information to be acquired and will often work with both sides to mutually provide requested information ahead of the actual mediation through informal discovery.
2. Will there be a pre-mediation conference with the mediator and, if so, what needs to be discussed in such a conference? (The tips in this section can serve as a checklist.)
3. What is the scope of confidentiality provided by applicable court rules or statutes? Are there any additional expectations about confidentiality the client may want included in an agreement to mediate?
4. Is a standstill agreement for discovery and motion practice desirable?
5. Who will be the mediator?
6. Where will the mediation be held?
7. Who will attend the mediation? Should an expert, fact witness or others attend?
8. What pleadings, demonstrative evidence, or other information should the client or lawyer bring?
9. What are the various stages of the mediation process?
10. What is the mediator’s role and how does it differ from a judge/arbitrator?
11. What techniques do mediators employ?
12. Is mediation inappropriate for the situation? (E.g. domestic or workplace violence, extreme imbalances in bargaining capacity, or individuals impaired by age, drugs or alcohol.)
Reviewing this information can help eliminate surprises and demonstrates your knowledge of the process, boosting your client’s confidence in the process – and their attorney.
B. Preparing Your Client for Mediation
Once a client decides (or is ordered) to try mediation and you have gone through this checklist with them, it is time to prepare them for the day of the mediation. To do so, it is helpful to cover the following aspects of the process.
1. Explain their role during mediation. Who will deliver an opening statement? What will be said? Who will respond to questions from the mediator and opposing counsel?
2. Remind them, the result must be acceptable to all parties to successfully resolve the dispute.
3. Encourage them to value any pre-existing relationships between the parties or improved relationships mediation can create.
4. Ensure your client (or their representative) has full authority to settle.
5. Discuss who will give each portion of the presentation and the role they will play in the overall process and decision-making.
6. Advise them to develop a working relationship with the mediator and explaining the need to protect their credibility and trustworthiness.
7. Coach them on effective communication styles. Ask them to avoid confrontational or adversarial communication. Encourage professional and courteous behavior and to use the language of persuasion.
8. Help them prepare their opening statement.
9. Prepare a confidential memo for the mediator, if permitted, with any special information which could help or hinder a good environment for settlement.
10. Have them watch a simulated mediation session, such as Saving the Last Dance: Mediation Through Understanding and Mediators at Work: Breach of Warranty produced by the Harvard PROGRAM ON NEGOTIATION. (The full video is 51 minutes long and is available for free viewing at many law libraries or purchase from the Harvard Program on Negotiation A 6-minute excerpt is available on YouTube: https://www.youtube.com/watch?v=EjS0xTlxNwI).
While the value of your case may not justify doing all of these things, going over as many as your budget allows will make you and your client more comfortable when the day of the mediation arrives.
C. Preparing the Case for Mediation
The well-prepared lawyer will carefully review the strengths and weaknesses of the case and candidly discuss them with their client. This review should include these topics:
1. Costs, risks and benefits of not reaching a settlement.
2. Best/worst possible results in litigation and estimated likelihood of achieving those results.
3. Factual and legal issues and relative strengths and weakness of each party’s case.
4. Client’s goals, needs and interests, prioritizing them.
5. Opposing party’s goals, needs and interests. Reviewing possible trades, and rapport-building “throw away” items of interest to them and no cost to your client.
6. Client’s emotions which could be triggered by the dispute itself, the other party or certain aspects of the mediation. (Allow your client to express those emotions before the mediation and reassure them a skillful mediator will help them manage their emotions and give them appropriate expression during the mediation. Send a “side letter” or ask for a private meeting before the mediation begins to alert the mediator to these issues.)
7. Ways to best advance their interests.
8. Any confidential information which should, as a matter of strategy, not be disclosed to the other side or disclosed only when strategically appropriate. Since less than 2% of all civil cases go to trial and the majority of those that don’t end in settlement, mediation may be the best place to reveal any “smoking guns.”
9. Set reasonable expectations. Most monetary disputes end with each side making concessions.
10. Identifying objective criteria to support principled bargaining, e.g., jury verdict research, an appraisal from a respected appraiser or government data.
11. Unforeseen evidence or arguments raised by others in mediation. What to do if they disclose a smoking gun.
12. Handling questions from the mediator or another party.
13. Possible impediments to a negotiated solution, including relationship issues, data or information problems, conflicting interests, sources of the conflict, etc. and ways to manage them.
14. Brainstorm possible solutions to the situation, especially those which may satisfy the interests of both parties. (TIP: Ask your client to identify all the possible ways they might satisfy the other party’s interests, no matter how ridiculous. With a few tweaks, they can sometimes give rise to a creative resolution.)
15. Ask your client to identify all ways the other side could possibly satisfy your client’s interests.
16. Determine whether your client is aware of any limits on another party’s ability to settle.
17. Discuss negotiation styles.
18. Develop an opening offer and counteroffer strategies. For plaintiffs, be ready to blackboard the components of your damage calculation and opening demand. For defendants, do the same for your opening offer, using jury verdict research, your client’s experience tables, your own experience or that of colleagues, etc.
19. Practice, in simulation, the agreed strategies and styles. If the stakes are high enough, consider hiring a mediator to preside over the simulation.
20. Consider a mock trial to determine value of case and show client risks to be avoided by settlement.
Again, not every case will justify all of these steps, but if you are faced with a “bet the company” dispute, if you are employing a mock trial at some point anyway, why not allow it to inform your negotiations in the mediation? Whatever you can do to prepare for the mediation will enhance your client’s experience when the day of the mediation finally arrives and instill confidence in your ability to effectively represent them. Preparing will help both you and your client have a “winning” experience in mediation.
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Robert E. L. Wright is a pioneer in mediation and is a member of Professional Resolution Experts of Michigan (PREMi).
