By William D. Gilbride, Jr.
Because facilitative mediation has been demonstrably successful in resolving disputes, many courts presiding over civil claims are referring cases to mediators, even as early as at the first scheduling conference, after the pleadings are filed but before discovery. This phenomenon is different from the historical model where, after the completion of discovery, while motions to dismiss were pending or the case was “ready for trial,” the courts would order the parties to a settlement conference or refer them to a mediator to assist the now “fully informed” parties in settling their differences. As we are in the midst of these changes, this article will address some of my own experiences representing clients in mediating civil cases early on in the life of the litigated case. I include some of my own do’s and don’ts, developed over years of experience.
Joint sessions. Always agree to a joint session at the outset of the mediation and/or during the process; the earlier in the process, the better. Curiously, many counsel and parties resist this advice because it will be “uncomfortable” for the parties to be together in one room. No doubt, it can be uncomfortable; but being together with counsel during a joint session is no more uncomfortable than it will be in a party deposition or when they (someday) get to court. So, they may as well appreciate the reality of being a party in a litigated case. Unlike social media, court proceedings likely involve actual face-to-face confrontations, so the joint session, and all the anxiety that goes with it are just a part of the process. I’ve also observed that in most cases requiring a joint session puts the parties on their best behavior. Prior to the litigation, the parties were more than likely in some form of relationship, be it familial, contractual, as partners, principal and agent, buyer and seller or landlord and tenant, to name a few.
Sometimes that historical context, revisited during a joint session, eases the tensions involved and puts context on the narrower issues in dispute. Also, mediators receive training on how to handle difficult clients and tense situations, so a credentialed mediator should be able to diffuse and manage problems if they arise.
Let your client speak. For counsel, there is much to be learned in a joint session, especially if rule number two is followed: Make your clients do the talking. All too often, mediations fall flat because the lawyers do all the talking, and the clients sit tight with lips sealed by their attorney’s order. The benefits of having the parties speak for themselves are legion. We all understand that people learn from hearing themselves speak, so what better forum for that than in a private, confidential mediation conference?
The sound of their own story will resonate in both its strengths and in its weaknesses; the same is of course true for the opposite side of the dispute: Hearing from their opponent and having to articulate their own position is often beneficial. Like juries, most people are fairly good judges of the truth, and can assess for themselves whether their story will be believed, especially when confronted with the opposite view. And, as lawyers know, if the case gets to trial, they will need to testify, so why not get a confidential preview of that in an early facilitation.
Some other perspectives. Naysayers will complain this process may reveal strategies and case theories; but this concern is shortsighted because the facts of the case will come out in discovery, anyway, so why not get them on the table early on before incurring the costs associated with formal discovery. Speaking of discovery, all counsel will get a lot of discovery just by participating in the mediation, listening to the parties and outlining the information which should be pursued to prepare the case for trial if the mediation does not yield a resolution. And since less than one percent of all complaints result in a judgment or verdict entered as a result of a trial, this may be your client’s only experience akin to their “day in court.” The joint session at least forces the other side to hear them.
Once the joint session is concluded, it is time for the more typical facilitative efforts, and those are more commonly understood and anticipated; we are all familiar with shuttling offers back and forth, adding and removing requirements and similar negotiation tactics, all of which are remnants of a settlement conference, so I will not belabor those considerations in this article. But on this subject, here is another piece of practical advice.
Final offers. Frequently, one side will proclaim that their next offer is their “best and final.” Suddenly, counsel and the parties in one room begin packing their bags and prepare to leave. As lawyers and advocates, we understand the import of that strategy and we frequently see it in negotiations. It may be an appropriate move in many cases, but often it comes too soon and is ill-advised without first discussing it with the mediator for several reasons. First, if you are perceived by your opponent as serious, you may have just missed an opportunity to discover their bottom line. (They are packing their bags instead of making you another offer.) Second, most negotiators will not believe you. Would you and your client actually decline an offer just $10 above or below your announced “best and final” offer? Worst of all is making the announcement without first consulting your mediator.
Strategy conference with your mediator. If you decide to proceed with a last best offer, reserve a moment or two with the mediator before actually leaving. There are occasions where the threat actually works, and you do not want to miss the opportunity to walk out with a signed agreement or MOU that day because you left before the mediator communicated their acceptance. Worst case scenario, your opponents are offended, they dig in their heels even harder, and any progress made towards a resolution is lost. I recommend that you allow the mediator one last chance to counsel with the parties before you actually leave.
A seasoned mediator can help you explore your strategy by asking you questions, such as: “Are you actually at your monetary limit or have you and your client just reached your endurance limit for incremental moves by your opponents?” If there is still room left, the mediator may suggest a variety of moves for you to consider, from calling for an attorneys-only caucus to explore alternative moves to keep the negotiations alive, or they may suggest something as simple as honestly telling the other side you would like to resolve this matter today, but you and your client are frustrated by the pace of the negotiations and your client wants to stop negotiating. Then, make the impasse the problem by asking your opponent, “What can your side do to speed up the process so we don’t lose momentum?” You may get nothing or you may get a move which surprises you and leads to further discussion. But whatever you do, give the mediator a few more minutes before you depart from the conference room or the Zoom breakout room.
Sometimes, good things happen to those who wait.
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