Choosing the right mediator for your case is essential to reaching an agreement that will settle your case. First, consider choosing a mediator who is in the prime of their career, who came to mediation as a calling early, and who is well trained in the latest cutting edge mediation and conflict resolution techniques. Just because someone had an illustrious career on the bench or as a litigator and is interested in slowing down in their retirement years, does not make them the right mediator for your case. Mediation is a process unlike litigation and unlike the bench, requiring a different skill-set, a different personality and different training. That being said, some parties may want a retired judge or end of career litigator to tell them what they should do, directing them to how they should settle the case. In most cases this approach would be counter-productive. A skilled and trained mediator understands the dispute resolution process as both a science and an art. One common mistake is to look for subject matter expertise as the prime factor in choosing a mediator. That is a good idea if you need someone to tell you what the law is, to issue a “ruling” during your mediation session, but if you and opposing counsel already know the law, you might not need to duplicate that knowledge and that style of mediation can even be a barrier to reaching a settlement. You also don’t want a mediator on the other extreme who only takes offers back and forth to each room and nothing more. For most cases you need a mediator whose strengths are diagnosing the hidden obstacles to settlement, the monetary and non-monetary motivations of the parties, a mediator who can connect with the lay parties, gain trust, who understands the costs and risks of a trial and who can bring the parties together to reach a mutually beneficial resolution.
Prepare for a mediation as you would for a deposition or trial. Plan a strategy for the negotiation and the presentation of the evidence in your mediation brief. Know both your strengths and be quick to acknowledge your weaknesses. Many cases don’t settle because the parties overestimate their strengths and fail to properly weigh the weaknesses in the case. Meet with your client a day or two before the session to prepare them for what the process entails. Review published jury verdicts in similar cases and share them with your client before the mediation. Consider sharing your mediation brief with the other side well in advance of the day of the session. It sometimes takes weeks for an insurance company to run new evidence up the hierarchy to get more authority. The more information is exchanged, and the sooner you exchange it, the more likely the case will settle in an appropriate range. Alert the mediator to any special issues, a difficult client, relevant cultural matters, unresolved legal issues or other barriers to settlement prior to the session.
The mediation brief should be concise but rich with substance. There is no stock formula for a mediation brief. Each case is unique and may require a different approach. Remember, you are not trying to convince the mediator of the strengths of your case, you are trying to convince the other side. Include a brief section of the facts and a short evaluation of the applicable law and indicate if your position is in dispute by the other party. Include the past negotiation history and where the offers for each party stand. Include jury verdicts for similar cases. Give short summaries of expert opinions and lay witness deposition testimony. Do not include all the medical records, but do include a few highlights. Provide some photographs, diagrams, videos or animations. If discovery is ongoing, provide short excerpts of deposition transcripts. Again, keep it concise and clear. Do not surprise the mediator or other party with new information during the mediation. This is a bad tactic. The defense should be aware of all your evidence before the mediation in order to have a few weeks to gather sufficient authority. The plaintiff will not respond well to a surprise and may leave the mediation to have time to consider the new information. In most straight forward two party cases, the mediator should be able to review both briefs and materials in an hour and a half. This can vary by the complexity of the case and the number of parties but it should be your goal to write clearly and concisely so the mediator can quickly get up to speed on your case.
Have a negotiation strategy. Your first offer sends a message. Offers fall in a categorical range from accommodating, ZOA (zone of agreement), reasonable, credible, extreme, and insulting. You do not want your first offer to be insulting, which would make further negotiations difficult. Your offers need to be strategic and communicate both your willingness to settle and your confidence in the strengths of your case while acknowledging your weaknesses. If you must make an extreme offer, explain why, for example, you have a difficult client who needs a longer process to get to the ZOA. The most important offers are your first and last. Make a first offer that puts you on a track towards settlement. Your last offer should be calculated to settle the case. Mediation is a collaborative effort between you and opposing counsel, it is not a competition. To not settle a case in mediation, is considered “a loss.”
A mediator should be flexible on the structure of the mediation as every case has different clients and therefore, different needs. An initial joint session, where both attorneys and parties are in the same room, can be helpful and you are entitled to request one if you think it would be helpful to your case. There are many types of joint opening sessions. The attorneys can each give an opening statement or the clients can also give a statement. Avoid saying something in opening statement that will offend the other party and inhibit the rest of the process. First, if the plaintiff gives an “opening” the client may feel like they have had their day in court. The opposing side may see how great your client is as a person, see how well your client might testify at trial and perhaps even have some empathy for your client’s suffering. Joint sessions let the parties put a face with the negotiations. Avoid an opening session where one of the parties might insult the other. There are many variations on this theme. You can have multiple joint sessions, intermixed with private caucuses (each side in a separate room). Advise the mediator in advance if you have special requests for the structure of the mediation. You might call your opposing counsel as well to see if there is agreement or you may elect to let the mediator address these procedural issues before the mediation begins.
The traditional method of mediating was that all things were confidential unless the party specifically authorized the mediator to disclose the issue. This is not mandatory. Some mediators now consider everything to be shared unless specifically told not to disclose. Be sure to find out how your mediator plans to conduct the mediation in terms of confidentiality. Read the mediation agreement. You can specify how you want confidentiality handled in your mediation. Remember, if your information is confidential, the mediator can’t use it to persuade the other side about your case and you limit the effectiveness of the process. The more information you share with the other side, the better chance your case will settle.
Mediation works! Approach the mediation with the same determination as you do a trial. Be prepared for success and have a strategy in mediation. The process can be rewarding in the end, but is also hard work, frustrating and even tedious. Avoid the “fake walk-out”. It doesn’t work. Avoid posturing and blustering. That is a bad tactic. Do not use mediation for an improper purpose like extra discovery or to torment your opponent. Instead, approach the process ethically and in good faith. Come ready to work hard to find areas of agreement and move into that “Zone of Agreement” where the case will settle. You can’t short cut “the dance.” Let the process play out and be patient. Long hours spent in mediation will settle a case. If negotiations do break down, your mediator shouldn’t close their file when the parties leave. The mediator should follow up after the mediation to see if more discovery by the parties has opened a new area for a settlement agreement. Be quick to schedule a second or even third session and try again. Mediation saves time and money that can go to your client and eliminates the risk of “rolling the dice” in a jury trial.
Most of the time the final settlement agreement should be drafted by the parties not by the mediator. Negotiate the settlement agreement as you would an order after a hearing including all terms of the agreement. Draft it carefully so the case is over and there is no room for a party with buyer’s remorse to reopen the case. You cannot call the mediator as a witness in a subsequent proceeding to enforce or set aside the settlement agreement. You want your settlement to be final. Trust the mediation process, it works!