Success in mediation depends not only on the skills of the mediator, but on the approach of counsel and clients. Here we look to some of the issues that counsel should consider both before and during the mediation. Though we focus on Title VII- and FLSA-type cases, most of our comments apply universally.
At the outset of a case, counsel should assess the clients’ goals, and what discovery is needed to litigate or negotiate. For Title VII-type claims of discrimination, whether in hiring, pay, promotion or termination, the plaintiff typically needs to show disparate treatment and prohibited causal animus. To demonstrate both, the party can use statistics and otherwise invoke anecdotal evidence, including other employees’ experiences and workplace comments. For harassment or abusive-environment claims, anecdotes are particularly useful. In FLSA-type cases, plaintiff’s counsel needs information on the client’s pay and hours, including any employer documentation. The employer itself will presumably ask for any documents pertinent to plaintiff’s allegations. Apart from documentation, counsel should consider whether one or more targeted depositions would assist negotiations.
In anticipation of mediation, plaintiff’s counsel must educate his client to manage expectations. He should provide a realistic assessment of the case, and describe how the mediation process will unfold, including possible negative critiques of the case by the adversary or the mediator. He should also warn that opening bids by the adversary are likely to be well outside the range of what the client expects. The aim is to avoid the client taking undue offense at the adversary’s performance. Counsel should also note any financial constraints limiting defendant’s ability to fund a large settlement. In short, counsel should discourage inflated hopes of a quick, and possibly outsized, payday. This consideration is particularly important in many employment cases, where the litigant’s anger over past mistreatment may skew his evaluation of his own case. Defendant’s counsel should provide equivalent advice on litigation prospects, costs and the mediation process.
Plaintiff’s attorney should also consider whether to invite his client to speak at the mediation—presumably in an ex parte session with the mediator. Some clients’ narratives may be helpful in providing a unique perspective on what they have endured, an exposure that may positively influence the mediator and the adversary, or simply provide some catharsis for the client. This approach may also work for some defendants.
Another question is whether to start direct negotiations before mediation. It is usually helpful in providing a feel for the other side’s likely future posture and flexibility, and may save time and avoid disputes at the mediation as to “who goes first” with an offer or demand.
When preparing a detailed mediation statement with accompanying documentation, counsel must assume that the mediator will thoroughly vet these submissions. Thus, care should be taken to present a balanced, accurate account of events and supporting evidence as well as governing law. This statement is likely to be the first substantive contact with the mediator, and first impressions tend to last. More broadly, accuracy and candor must govern all communications with the mediator.
The mediation process will vary depending on the mediator’s style. Many mediators use a pre-mediation telephone conference and a brief joint session at the start of the mediation to allow counsel to raise any issues they wish to address in each other’s presence. Ex parte sessions follow, at which the mediator will discuss issues prefigured in the parties’ submissions and then seek opening demands and offers while trying to gain some sense of the parties’ flexibility. With repeated rounds of demands and offers, the parties hopefully make some progress, with the mediator free to suggest ways to “grease the wheels.” These rounds may be accompanied by further discussion of substantive issues, as the parties seek to explain their bidding and the mediator reacts to those explanations.
One early issue for parties is how to set their opening bid, whether a demand or an offer. For opening bids-and-asks, styles vary, ranging from very aggressive to “cooperative” or “realistic.” Although the decision on this may depend in part on an assessment by counsel of the negotiating style of the other side, my experience is that opening with a more realistic—that is, less extreme—position tends to move the process forward more smoothly without necessarily giving the adversary an unrealistic view that the bidder is conceding weakness. To further protect the client, at any point counsel can give the mediator more than one message to transmit, for example, that the client will alter his offer substantially on this round but will slow his movements thereafter absent a significant move by the adversary. Counsel may also encourage the mediator to give the other side his “impression” of the client’s targeted range, a means of enlightening the adversary without committing the party to anything specific.
If the parties are substantially separated in their bid and ask, one side may propose a so-called bracket; for example, plaintiff offering to reduce his demand to “x” if defendant will agree to raise its offer to “y.” Even if the other side is unwilling to agree to those numbers, he may propose an alternative range; if the two ranges overlap, that may define a range in which the parties are closer than they were before.
During negotiations, the parties should reexamine their postures as new information filters in. This may be in the form of the mediator’s assessments of multiple issues in the case or new information from the adversary. In short, even if the client started the day with a figure in mind as his absolute red line, counsel should encourage flexibility and continuing reassessment.
To bridge any stubborn gap, each side should consider sweeteners. For example, plaintiff may offer to accept payment over time to ease financial burdens, or defendant may offer a positive reference letter for a jobless plaintiff or provide other job-search assistance.
If negotiations have stalled and both sides are entrenched in their respective positions, as a last step they may consider inviting a mediator’s proposal. The mediator may ask “If the other side is prepared to settle on the basis of terms ‘x’,’ ‘y’ and ‘z,’ are you prepared to do so?” If both sides say “yes,” they have a deal. If one or both say “no,” I simply advise counsel that there is no deal, thus protecting any party who said “yes.” As a further refinement, if the settlement terms are complex, the mediator can include as a term that any irreconcilable disputes in drafting the settlement document are to be decided by the mediator acting as an arbitrator.
This summary of the mediation process merely skims the surface of issues likely to arise in mediation efforts. In practice, each case presents unique questions and challenges, and lawyers and clients will bring different perspectives and styles to the process. Nonetheless, to maximize the chances for a successful outcome, planning and forethought, as well as flexibility and judgment, are essential.
Michael H. Dolinger joined JAMS after serving for more than 31 years as a U.S. Magistrate Judge in the Southern District of New York. He can be reached at email@example.com.