Mediation is a productive process, a process whose premise is that no party will get exactly what they want, but each will compromise to reach a mutually agreed upon resolution. I hear attorneys say that a good settlement is where everyone comes out unhappy. This sentiment is not true. While some buyer’s remorse on both sides is normal, generally I have found that the parties are grateful that the dispute has been resolved. Much of this relies on the mediator’s ability to help the parties change their negotiating position and accept a compromise without losing face. Making the best use of your mediator’s abilities and time at every stage of the proceeding is extremely important in attempting to reach resolution.
The Pre-Mediation Teleconference
The mediator can be of great assistance even prior to the date of the mediation itself. Depending on the complexity of the case, involving the mediator in a pre-mediation teleconference is worth considering. In general, the parties may give a brief recitation of the facts of the case; what settlement negotiations have already taken place; what non-negotiable conditions might be in play; a discussion with respect to the submission of briefs prior to the mediation; whether the briefs will be exchanged; and any other topic that will help to make a more efficient use of both the parties’ and the mediator’s time.
A discussion about the creation of a structure for the mediation process and seeking the mediator’s input prior, can streamline the process. Separate teleconferences with each party, on consent, are also worth considering. This obviously would involve a more candid representation of the position of the party as it relates to the case. Many times, by engaging in the foregoing, the necessity of a joint session can be dramatically shortened, if not eliminated.
The Pre-Mediation Briefs
The importance of a pre-mediation submission is to ensure that the neutral has a thorough understanding of the issues that are in dispute, as well as the settlement positions of the parties. The brief gives the neutral time to consider the positions of both sides in advance to better facilitate the negotiations and lay the groundwork for an evaluation. Accuracy, brevity and clarity should be the goal in the mediation brief. All too often, briefs can be equated to grandstanding which often takes place in the joint session. While the arguments are lengthy, the objectivity is short. Your brief should address opposing arguments and discuss the weaknesses in your case. This will enhance your credibility with the neutral. With respect to exhibits, you should attach only those that are necessary to explain your position.
If necessary, submit a memorandum of law along with the brief. If you are inclined to submit jury verdict reports which address the types of verdicts that have been returned in a similar case, they should be accompanied by appellate court decisions addressing the sustainability of same.
The Joint Session
There has been a discernible trend by counsel to bypass the joint session and proceed directly into the breakout sessions because “the other side knows our position.” If that is truly the case, it is not an effective use of your time or the mediator’s time to have a joint session. However, parties in many cases that forgo a joint session (in the breakout sessions) quickly realize that they were not fully informed of each other’s positions. This often results in the mediator convening the parties to conduct a joint session after the fact, which is not time efficient. The joint session gives you the opportunity to highlight your positions, address your weaknesses and further educate the mediator so he can more effectively conduct the negotiation. There is a fine line between being an advocate and respectfully explaining your client’s position versus grandstanding and attacking your adversary. The latter is a waste of the time for both the parties and the mediator.
The Breakout Session
Meeting the Client. Whether a party is an individual or a chief executive officer, the mediator should meet with them, if the client is amenable. Meeting the client is critical: It is the difference between reading a cold deposition transcript and witnessing live testimony. Teleconferences, briefs, joint sessions, and “attorney only” breakout sessions are valuable, but they are filters that very often obscure the essence of the conflict. Hearing from the client personally and asking the client questions, if appropriate, allows the mediator a fuller understanding of their position. It also gives the mediator the opportunity to evaluate the type of witness the client would make, if called to testify.
The mediator should not be like the Wizard of Oz, the invisible entity pulling all the levers. For the client, involving them in the process from the outset makes them feel included and heard. One of the most significant ways that a mediator can help an attorney resolve a case is by sitting and listening to the client no matter how long that meeting may take. This patience lays the foundation for the acceptance of compromise. It also gives credibility to the evaluative process where the mediator may be asked by counsel to explain the pros and cons of moving forward with the case, as well as any settlement proposals. If the mediator does not listen to the client, the client will not listen to the mediator.
Facilitating Negotiations. Facilitating discussions between parties during breakout sessions is a critically important task. Counsel should take great care in ensuring that the mediator understands the position to be conveyed to the opposing side. Consider asking the mediator directly how to do so. He may have a better sense as to the best approach with opposing counsel. From the neutral’s perspective, a party might take an overly aggressive posture and not give the process time to work, or they may take too passive a position, further delaying the process. Be specific with the mediator as to exactly what your position is and use the mediator to help craft your message.
Evaluate. At the appropriate time, counsel should ask the mediator to provide his views of the case and, in his opinion, what compromise should be considered. Understand, you are not paying the mediator to agree with you in all respects. His evaluation of the case usually evolves slowly over the course of the mediation process. The mediator must be tactful in conveying his evaluation, leaving the parties room to change their position and accept a compromise that they would not otherwise like. The mediator needs to give each side a means of retreat without appearing like they have surrendered.
Gaining the Acceptance of the Client. If an evaluation has been given to both sides and the parties are approaching a settlement, counsel, in the appropriate case, may consider asking the mediator to speak to the client. The mediator will convey to the client what he believes are the strengths and weaknesses of the case and what the potential outcomes could be if the case were to go to trial. The best way to make use of the mediator is to have him calmly explain the facts to your client. It should always be made clear that it is not the mediator’s responsibility to give the client legal advice or to tell them to accept or reject a settlement.
When you reach an impasse in mediation, counsel should consider asking the neutral to reconvene for a joint session for a face-to-face discussion. Bringing the parties back into the room to talk directly to each other could help break the impasse. Even if you believe settlement is hopeless, avail yourself of this opportunity.
At this point in the process, both parties should use the mediator to ensure that a settlement agreement encompassing all terms is reduced to writing. One should not hesitate to ask the mediator for his thoughts and suggestions with respect to any issues regarding the settlement agreement itself.
In the event the mediation does not result in a settlement you should always ask the mediator to continue to assist in post-mediation negotiations. As a matter of practice, I give the parties my contact information at the end of the mediation and encourage them to reach out to me if they wish to resume negotiations. I always follow up with both sides approximately 30 days out to see if they wish to continue. By following up, the mediator keeps the case on everyones front burner, which will help to stimulate further negotiations that may lead to a settlement.
Finally, if the case does not settle, you can ask the mediator to speak with your client. It can be helpful for the mediator to give them a summary of what has been accomplished and to assure them that he will stay engaged, and possibly help settle the case at a later date. Clients are always disappointed and frustrated if the case does not settle. This can lead to dissatisfaction with their counsel who should use the mediator to help mitigate this understandable frustration.
The foregoing is not an all-inclusive list of ways to use a mediator. Every case is different and has its own subtleties. However, breaking down the mediation into separate meaningful components should be helpful in guiding you to use the mediator’s skills (and time) as a facilitator and an evaluator.
John P. DiBlasi is a retired Justice of the Supreme Court, New York, Commercial and Civil Divisions. He is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States.