The numbers don’t lie.
Over 40 years ago, there were nearly 11,000 trials in the federal courts. In recent years, that number has steadily declined to around 8,000 criminal and civil trials a year. And, according to many experts in the legal world, this is the way clients like it.
People rarely want to try cases, said Charles Craver, a professor at George Washington School of Law.
The result is that courts and dueling clients around the country are increasingly looking to other means to resolve disputes. One of the leading contenders is mediation, a method that uses a neutral party to help the parties have a conversation to resolve the problem.
New Jersey State Bar Association Trustee Bonnie Blume Goldsamt, who practices in Hackensack and Verona, is a leader in the mediation field. She will also be a speaker at the New Jersey Institute for Continuing Education’s upcoming ADR Conference in June.
“The quality of the settlement, the clients’ satisfaction with the terms and the costs incurred are, needless to say, of major importance to your clients. With more and more cases being sent to mediation, it’s time for some pointers on how to be a better advocate when your client voluntarily chooses, or is sent to, mediation,” she said.
Goldsamt recently offered, with apologies to David Letterman, her top 10 techniques for a successful mediation.
“Know, understand and explain the process to your client. Your client will play a major role in the mediation process. After all, it’s the parties’, not the lawyers’, dispute. The mediator will speak directly to your client, even with you there. Your client should be prepared for this and be ready to discuss the facts and their interests. Make sure your client knows that disputed facts and legal issues will not be resolved in mediation, and that it is unlikely that your client will be able to persuade the other party to abandon their case in mediation. The only victory to be achieved in mediation is a satisfactory settlement that works for all concerned.”
“Advise your client on how the law applies to the facts and provide general legal information and information about litigation and its costs. Give specific information about the legal issues to your client. Talk about how the facts should be presented during the mediation, and plan for possible compromises and trade-offs, which could be accomplished in the mediation. After all, your client may be able to give something up to the other party.”
“Put some time and effort into preparing a confidential memo for the mediator. The mediator is there to assist you and your client, so help them understand the case. This memo should identify the issues, summarize your client's position, cite applicable law and cases, summarize prior negotiations, identify particular problems, and provide relevant documents.”
“Most times, the attorneys come prepared to speak during the joint opening session. Also, prepare summaries and copies of supporting documents to use in mediation and make sure you have enough copies for everyone. Keep in mind that documents prepared solely for mediation may be confidential under the New Jersey Mediation Act. So, be clear about documents that are not to be considered confidential and that may be used for trial purposes.”
“Use mediation to educate yourself and your client about the strengths and weaknesses of the other party's case. And use the session to teach your client about the merits of their case.”
“As you help prepare your client for mediation, ask them to articulate clearly their needs and interests, and to identify the those of the opposing party.”
“Use role playing to practice strategies and techniques in a way to advise your client on negotiating methods. Coach your client for negotiating possible outcomes and advise the client on reasonable and appropriate ranges for settlements.”
“In developing settlement options, stay limber. And when you get to the money, be ready with a principled opening offer that you can explain. This is the time to be creative. Ask your client to identify and list all the things the other party can do to satisfy their interests and what they can offer in exchange. Remember, the mediator is not a mind reader. So if your client needs something in order to settle, make sure to get it out on the table. The key in developing settlement options is flexibility.”
“Prepare settlement documents during the final mediation session, including the settlement agreement. Before you set foot in the mediator’s office, list all necessary components that must be in the written agreement. But know that some of this may change during the mediation. Take careful notes as you go along, so that you do not forget an important term when drafting the agreement, especially since that drafting will likely happen on the spot.”
“The manner and tone of the mediation session is critical for its success. Be professional and courteous, and create a tone of cooperation, congeniality and conciliation. At all costs, avoid being confrontational. From the beginning, establish a working relationship with the mediator and use them as an ally and a resource. During the mediation, use the language of persuasion, not advocacy. Show you recognize this as an opportunity for developing creative options aimed at settlement.”
