Being an effective advocate for a client at a mediation challenges a litigator’s basic instincts. That is because the theory, goals and dynamics of mediation are different—and, at times, completely antithetical—to those of litigation. Without truly understanding the process, litigators can unknowingly impede a successful mediation by continuing to wear their litigator’s hat in the mediation.
What Are the Critical Differences?
Some of the main differences between litigation and mediation are:
• Litigation is win/lose. Mediation seeks a better resolution for both parties than continued litigation and, at its best, can be win/win.
• Litigation strategies are “battle” strategies. Mediation strategies are “peace” strategies.
• Litigation is focused on the applicable law. Mediation is focused on the interests of the parties.
• Litigation is a lawyer-driven process. Mediation is a party-driven process.
• Litigation depends upon a third-party decision maker. Decisions in mediation are in the hands of the parties.
• Litigation remedies are limited to those permitted under law for stated causes of action. Resolutions in mediation are as broad and flexible as the imagination and desires of the parties.
• What is done or said in litigation can be held against you. Mediation is confidential.
• Litigation fosters careful, circumscribed disclosure and limited party interaction. Mediation fosters openness, communication and understanding between the parties.
Viewed in this context, it is easy to see how the two processes require dramatically different mindsets and skill sets and how continuing to think and act as a combatant during a mediation can be counter-productive. So, what can litigators do to transform themselves (and their clients), at least for the course of the mediation, from warriors to peacemakers?
Making the Decision to Mediate
The starting point for deciding to mediate is to be open to the possibility of a settlement. A settlement requires that each side be willing to compromise and accept something less than an outright victory that crushes the other side. Practically, this means one cannot approach the mediation believing that it is the job of the mediator to convince the other side that they have no case and should capitulate. It is surprising how often this turns out to be the expectation, particularly where the mediation has been court-ordered.
The next pre-mediation consideration is whether the time is right to mediate. This determination differs case by case and is more art than science. Will getting the parties together before discovery proceeds, costs increase and inflammatory testimony is elicited make the case more conducive to settlement? Or, will further investigation of the facts, clarification of the parties’ positions, and evaluation of the credibility of witnesses or the determination of a dispositive motion be required before settlement will realistically be entertained?
Next is selecting the right mediator. Mediators employ different types of mediation and have different styles. The most common mediation used in litigated matters is facilitative mediation in which the mediator meets with the parties together in a joint session and then separately in caucuses. As the caucuses permit the parties to convey information confidentially to the mediator with instructions not to communicate that information to the other side, litigators tend to be more comfortable with this format. The mediator, armed with information from both sides, can then evaluate whether there is a realistic possibility of settlement and engage in shuttle diplomacy to try and facilitate it.
Other mediators practice an understanding model in which all sessions are joint, all information is shared with all parties and everything proceeds by agreement. This model may be particularly well suited to a situation where the parties will continue to have a relationship with each other after the dispute because it can foster better understanding between the parties as to the causes of the dispute and model new ways of communication to prevent future disputes.
Some mediators will take a much more evaluative role, expressing opinions on the strength or weakness of the parties’ cases. Sometimes the experience or status of the mediator may play a critical role. In some cases it may be beneficial to have a mediator experienced with the business in dispute who can present alternatives or ideas for settlement that would only be known by someone familiar with the industry. Or it may be advantageous to select a mediator who has litigated similar cases and can give a reality check to the parties. In other cases, one or both parties may be more likely to be encouraged to settle if the parties hear an evaluation of the case’s merits and risks from someone whose judgment both sides respect.
Thus, it is important to think carefully about the nature of the dispute and the relationship of the parties before determining which type of mediation and which mediator is most likely to be successful.
Proper preparation can mean the difference between a successful mediation and an unsuccessful one. Key to preparing for mediation is making sure that all of the information necessary to enable the parties to sign off on a settlement has been exchanged or will be available. For example, it is essential to identify the universe of items in dispute, as well as making sure that the information necessary to determine their status, ownership or value is available to both sides. Without the information that will enable both parties to fairly evaluate what they are getting or giving up, it is unlikely that either party will be willing to sign off on a settlement.
However, a litigator, who is generally reluctant to share information and accustomed to only providing information through formal discovery (and then perhaps only after objections and motions), may balk at the prospect of voluntarily sharing information for purposes of the mediation that has not yet been exchanged or even formally requested. This is one of those instincts that may have to be overcome if there is truly a desire to settle and should be addressed with the mediator prior to the mediation.
Equally critical is making sure that the right people are at the mediation. As mediation is a party-directed procedure that addresses the parties’ interests, the people who need to be there are the key party representatives involved in the dispute and the party’s decision-makers. Moreover, because the mediation itself is an educational process at which interests, options and risks are explored and weighed in coming to a resolution, a decision-maker who has not engaged in the process is not well equipped to evaluate (much less veto) a resolution those who are present have worked hard to achieve.
It is also essential for the lawyer to make a full and forthright assessment of the strengths and weaknesses of the case, the time that it will take to get the case through trial (and appeal(s)), and the costs that will have to be incurred to do so. All of these factors will have a direct impact on whether any proposed resolution is a better alternative than proceeding with the litigation.
Just as important is preparing the client for the mediation. This means explaining the process to the client and discussing the client’s feelings about speaking directly to the other side. The lawyer should help the client mentally prepare to settle the dispute by educating the client about the weaknesses of the case and how litigation outcomes, even in the best of cases, can be unpredictable. It also means working with the client to develop a range of settlement possibilities.
As mediation is interest-based, those possibilities need not (and should not) be limited to only some compromise of what might be achievable at trial. Rather, attention should be given to exploring what it is that the client really needs or wants to be able to resolve the dispute and move on. Although these are issues that the mediator will focus on, starting to think along that path can only help to develop more options.
Generally, a mediator will set up a pre-mediation call to address these issues. Other issues to be discussed include the time and place of the mediation, the materials that the mediator needs to become familiar with the case and the parties’ positions, to share any concerns either party has about the process, and to ensure that the mediation is structured in the way that seems most likely to promote a successful resolution.
Most mediations typically start with a joint session at which each party (or their attorneys) have an opportunity to make a statement to the other side. In many cases, the mediation may be the first (and if it settles, the only) time that the parties will “have their day in court,” so it is important that both sides be able to persuasively present their client’s best case.
However, careful thought should be given to the content and tone of these statements, as well as who should deliver them, keeping in mind that this is not an opening statement to persuade a jury, but rather the first step in trying to elicit agreement from the other side. In some cases, such as employment matters or other cases involving individual plaintiffs, this may be the first time that a party ever really gets to tell his story and address his loss directly to the other party. This can often be an emotional and accusatory presentation. Yet the feeling of having had an opportunity to be heard can be critical first step in being able to reach resolution. Indeed, sometimes this presentation can elicit a surprising (and resolution-inducing) reaction from the adversary, who may have perceived the situation differently, had no appreciation as to how her actions affected the plaintiff, or who may have wanted to (but had been unable to or prevented from) expressing sorrow or regret.
On the other hand, there are cases in which the positions of both sides are well known and emotions are so high that beginning the mediation in joint session would likely result in an unproductive confrontation or hardening of positions. How both sides approach each other at the outset can set the stage for productive engagement or just another scene in the continuing fight.
It is often difficult for litigators who are focused on the merits of their case and positional bargaining to transition to negotiations based on interests and a wide range of options for resolution. This can result in positions being taken, even in the caucuses, which are counter-productive. These include such tactics as taking immutable no-pay positions, setting pre-conditions to making a demand or offer, insisting that the other side make the first move, refusing to share critical information, failing to be forthright with the mediator, expressing unjustified expectations as to the merits or outcome of the case, and refusing to listen to the other side or even consider their point of view.
Rather, during the mediation, both parties should listen to the other with an open mind. Disputes generally arise because of some conduct of both parties (i.e., something each did or did not do or say; a failure to have a written agreement covering the parties’ relationship, rights or obligations; an ambiguity in documentation interpreted differently by both sides or the failure to have foreseen or addressed the particular event that occurred; or a miscommunication or misunderstanding. Being able to acknowledge an understanding of the other parties’ point of view and how one’s own conduct may have played a role can go a long way toward softening positions and recognizing the risks if the case goes to trial.
As this would likely strike most litigators as displaying weakness or making an admission, it becomes a very difficult threshold to cross, yet it may be the key to allowing both parties to acknowledge some responsibility for the situation and be ready to compromise. The confidentiality of the mediation process is intended to foster such frank discussions. Whereas a legal analysis of the parties’ rights is largely an intellectual pursuit, human dynamics play an enormous role in the settlement process. Instead of seeking to convince the other side that it is wrong and your side is right, think about what is important to the other party and what can be offered to that party so that they might be willing to agree to that which is most important to your client. Think outside the box of litigation. Focus on what options may exist to achieve one side’s goals that may be less costly or objectionable—or maybe even beneficial—to the other side. Where there may be a continuing relationship between the parties after the dispute, the possibilities abound. Even if the case is a one-time monetary dispute, there are still options for resolution that can be discovered if the parties work with the mediator to explore them and not approach the mediation with a rigid, non-negotiable position or bottom line.
As mediation is a party-driven process, the mediator will encourage the client to do the talking. Often this encounters resistance as the party believes that the lawyer will present the case better and the lawyer is concerned that the party may say something that will be damaging. But ultimately, the parties are the ones who can best decide and prioritize their interests and it is the parties that will have to live with the resolution or to continue to be embroiled in the litigation. As the parties are in the best position to know the business options that might serve both parties better than continued litigation, it is not surprising that some of the best resolutions have occurred where the clients are able to explore these options together.
Despite the lawyer’s preference for comprehensive agreements, it is generally preferable to memorialize the key terms of any agreement reached at the mediation before all parties leave. To do so, even if the deal is to be subject to the execution of a separate written agreement, ensures that both parties have the same understanding of the key terms, provides a sense of closure and, often most importantly, lets the parties leave with the feeling (and relief) that the litigation is now over.
The mediator will generally follow-up after the mediation with both parties irrespective of whether resolution is reached. If there is to be a further written agreement, the mediator will inquire whether that was completed. If there are any snags along the way in drafting that agreement, do not hesitate to call the mediator if the matter cannot be worked out between the lawyers.
The fact that the case may not have settled at the mediation session does not mean that the mediation failed. Facts or issues may have been identified that need further exploration before one of the parties is prepared to settle. The mediation may have opened a parties’ mind to settlement or identified risks that the party needs more time to assimilate. By checking in periodically, the mediator can facilitate scheduling a new session when the matter is more ripe for settlement.
Geri S. Krauss, a litigator, mediator and arbitrator, is the founder of Krauss PLLC.