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Ten Steps To A Successful Mediation

There is no question that as mediation becomes an ever more popular method of resolving disputes, many attorneys, as well as their clients, find themselves unsure as to how to best use this process to obtain a settlement of a dispute in which they are involved. As one who has mediated numerous disputes by way of mediation, I have learned that certain steps can be taken to maximize the possibility that a reasonable and mutually satisfactory settlement can be achieved through this process relatively quickly and efficiently, though not without some work. The steps set forth in this article may simply be regarded as signposts down the "yellow brick road" which hopefully will lead you to successfully resolving disputes through mediation.

  1. Figure Out The Best Time In The Dispute Resolution Process To Mediate.

    Mediation can occur at any time with respect to most disputes; given the scarcity of courts for trial, our judiciary continues to encourage parties to talk to one another in an effort to resolve their dispute, whatever it is. Many cases are mediated before any lawsuit is ever filed; others are not mediated until the eve of trial or even after trial. My suggestion is that you attempt to mediate your dispute as early as possible, so that valuable time and money is not wasted. Having said that, however, it is clear to me that not all disputes can be effectively mediated when the parties are not sufficiently informed of the points and counterpoints to the claims or defenses that are in issue. Hence, at any point when you are considering mediation, ask yourself, "What more material information will I learn by postponing mediation that I don't already know?" It may well be that in order to effectively assess your position, and the value of the claim or claims being made, you need to obtain documents and perhaps other discovery, like depositions, from the opposing side.

    Remember, you do not need to know every detail of the other side's case in order to mediate. Assess what you have and don't have, and make a decision as to how soon you and the other party or parties to the dispute can effectively talk to one another intelligently. Then, as soon as you believe you have sufficient information to evaluate your case, consider discussing the possibility of mutually agreeing to putting discovery and filings on hold while you attempt to resolve the dispute through mediation.

  2. Proceed With Mediation With The Intent To Resolve The Dispute.

    I know that this sounds very obvious, but I have found that at least some attorneys come to a mediation with only a vague familiarity of the claims and defenses in issue and/or in the sole hope that the chosen mediator will simply "wake up" the other side by telling them they have no viable claim or defense, and that by doing so, this will lead to the resolution of the dispute. Anyone going to a mediation with this approach is wasting everyone's time and money. If you truly want to settle your dispute, you must do everything in your power to make it happen at the mediation. Your seriousness and your approach to planning for the mediation will go a long way toward helping both you and the mediator resolve the dispute.

  3. Conduct The Best Investigation You Can.

    Beyond any discovery you might have available to you prior to the mediation, there is no substitute for conducting the very best investigation you can regarding the claims and defenses being made prior to the mediation. This means speaking to everyone you can who may have knowledge of the subject dispute, and reviewing all documents that are pertinent thereto. You may even want to obtain statements from various third-party witnesses, for your possible use at the mediation. The bottom line is that the better armed you are with the strengths in your case and the weaknesses in your opponent's , the better equipped you are to evaluate the value of the case, and to advise your client accordingly.

  4. Select A Strong And Effective Mediator.

    The number of available mediators has increased exponentially with the fact that more and more cases are being mediated. Hence, there are generally many different mediators available to you; the difficulty is finding a mediator who will do more than merely shuttle the parties' settlement offers back and forth, which anyone can do.

    In looking for a mediator, you will want to find someone who not only has prior experience, but who enjoys a solid reputation as a mediator. Call your friends and other lawyers to find out who they think would be effective. Also, feel free to call the other side and invite their input. Remember, you and your opposing side have a common goal: to find someone who can talk effectively to both sides and have enough insight as well as compassion to be able to understand and resolve the dispute. It is essential that both sides have respect for the mediator to make any mediation work.

    Also, when seeking to make your selection, remember that different mediators have different approaches as to how they mediate a dispute. Do not be afraid to call the mediator personally to discuss how he or she generally approaches a case. For example, some mediators ask that only the parties and their counsel be present; others will want you to bring your clients and key witnesses to the mediation to talk and/or to have them available by telephone should the mediator wish to speak with them. I certainly would ask any mediator for references I can contact to discuss how they handled prior mediations. Hence, once you find a mediator who could be effective, share your information with the other side and listen to what they have to say, so that you are both in the position of selecting the most effective mediator available to you.

  5. Prepare A Succinct And Persuasive Mediation Brief.

    Most mediators want to read some written memorandum or brief concerning how you view the case so that they can effectively understand what the issues and problems are, and more specifically, what they need to do to get your case settled. In order to prepare the mediator, you must write a cogent statement of facts and legal argument to present to him or her. If there are written documents that the mediator should know about, attach them to your mediation statement, and highlight them or explain their significance so that the mediator can easily see why you feel they are important to the case.

    Do not make the mistake of drowning the mediator in unnecessary details. There is no question that you will probably know more nuances and facts about the case than the mediator is ever going to be concerned with. Figure out what's important and limit your written presentation to that. Give the mediator your perspective of the case and why you have evaluated it as you have.

    I also strongly believe that your written presentation should be shared with the opposing side. Many lawyers go into a mediation without sharing mediation briefs, apparently on the assumption that they do not want the other side to know facts not yet discovered or that they have problems. If you have information that you wish to share only with the mediator, supplement your brief with a confidential memorandum that is sent only to the mediator. Most mediators allow and invite this. My feeling is that if you do not share some of your written perspective with the opposing side prior to the mediation, they are going to walk into the mediation primarily knowing only how they see the case. That's not good for anyone if you are looking to settle the dispute in short order, at a mediation.

  6. Prepare An Effective Presentation Of Your Case To Verbally Present At The Mediation.

    Beyond the written presentation discussed above, you must be ready to verbally present your case to the mediator and the other side. This generally occurs during the so-called "public session," which is held at the beginning of most mediations. This first session may be the only time during the day when everyone involved in the mediation is in the same room.

    During this "public session," your verbal presentation should not simply be a regurgitation of what can be found in your written mediation statement. Rather, you should be able to give what is essentially a persuasive opening statement, such as you would give to a jury if the case went to trial. I personally like to address my comments not only to the mediator but also to the actual opposing party or parties, along with their counsel. Remember, the parties themselves must be convinced that there are problems for them if they go forward rather than settle.

    As I said above, some mediators like the parties themselves to talk at the mediation. This is often difficult for individuals who have had little or no prior experience in the legal process. They are afraid that they will say something wrong or be too nervous to talk. If this is a severe problem for you, you may decide not to use a mediator who requires your clients to talk out loud about their perspective of the case in front of their opponents. However, rather than shy away from such mediations, I generally look forward to them. If you choose such a mediator, clients should be and can be prepared to make a very brief statement of their involvement and/or feelings about the case. Having your client make an effective presentation helps the mediator to evaluate how good or bad the witnesses are in the case, which he or she can then use as tools for getting the case settled.

    Further, it is generally a good idea to have written statements, however brief, from significant third-party witnesses who cannot or need not be present at the mediation. You need not share these statements with the other side. However, it is generally very effective to bring such statements with you to use, particularly if the other side believes that some witness is going to say something that you know they will not. It is also extremely helpful for the mediator in that it gives him or her yet another tool to help resolve the dispute. In the absence of written statements, having certain of your key witnesses available to the mediator via the telephone can also be tremendously helpful.

  7. Communicate Effectively With The Mediator During The Private Sessions.

    After the public session has been completed, most mediators will divide the parties into separate rooms and discuss the case with them separately. During these private sessions, each party has a unique opportunity to candidly discuss the good points and bad points of their case with the mediator. I generally find that this is a very good time to share with the mediator certain points that can help resolve the case which may not have been brought out in my written or verbal presentation. To get the case settled, you must be willing to give the mediator as many tools and/or bargaining chips as you can to convince the other side that your settlement offer is in their best interest. During the private sessions, you may want to show the mediator certain documents that have not yet been produced and/or disclose witnesses or witness testimony that might come as a surprise to your opponent.

    Some attorneys come into mediation believing that it is best to hold back certain key points in the event they can be used at trial if the case does not settle. While I have no blanket statement to offer in this regard, I do believe that it is often best to disclose everything you can to the mediator and then discuss with him or her whether or not to authorize them to share that information with the other side. Too often, key points or evidence that can be extremely valuable to settling a case are held back at mediation, with the result that much needless time, effort and money is expended when, if disclosed at the mediation, may have caused the matter to be settled there. I think a good rule of thumb is that if you have documents or other evidence that can help to establish the strength of your position and/or the weakness of the other side's, do not waste them by keeping them to yourself; share them with the mediator and discuss together how, when and if to use them.

  8. Take The Opportunity To Be Creative.

    There is one thing that most all mediations have in common: the plaintiff's goal is to get as much money as possible; the defense's goal is to spend as little as possible. In order to bridge the gap, there are several things you might do. First, you can offer to have the monies paid in installments over a period of time. Secondly, you can offer certain material objects of value (like a computer or fax machine) which your client or the opponent has and is either not using or is willing to give up. Additionally, you should be prepared to offer other non-economic terms in the settlement. For example, in a wrongful termination case, an offer of a mutually agreeable letter of reference is often desired by a plaintiff. In a product liability case, you might substitute the defective product for a new one. Also, it's generally a good idea to ask the other side, through the mediator, what other non-economic terms might be acceptable.

    The most important thing to remember is that the more creative you are about settling the case, the better chance you have to bring the parties together and to resolve the matter once and for all.

  9. Bring A Settlement Agreement With You.

    Unfortunately, settlement agreements, including those reached at mediation, must be either signed and in writing or on the record to be enforceable. Since mediations often occur outside of court, getting your settlement agreement on the record at the end of the mediation, before anyone has a chance to reconsider, is generally difficult if not impossible.

    You want to make certain that you have an enforceable settlement agreement at the end of the mediation so to preclude either party from changing their mind the next day. I find that one of the most difficult things about mediations is that at the end of the day everyone is exhausted, and if you do reach a settlement, everyone wants to go home rather than write out the terms of the settlement. And, of course, when you are tired, you may agree to things that you regret the next day.

    Because of the above, I generally bring a prepared settlement agreement covering the specific dispute to the mediation. I leave blank spaces for the settlement amount and spaces where other settlement terms can be written. The settlement agreement I bring to the mediation is specifically written for the particular case.

    Having such a pre-formulated settlement agreement is extremely helpful to making sure that you have included all of the settlement terms, including the legal boilerplate, that you think is essential to your settlement. Having something prepared also may induce the other side to go along with certain terms that they might otherwise fight about.

  10. After The Mediation, Tie Things Up As Soon As Possible.

    Even if you are able to reach the terms of a settlement at mediation, there generally are a number of things to conclude before the case is really over. Certain unresolved minor issues can be resolved with or without the help of the mediator. Aside from that, work with the other side to conclude the case as efficiently as possible. This means making certain your client follows through and that the other side follows through on all of their obligations. It may also be necessary to report to the court that the matter has settled.

The reality is that when a case settles, it generally benefits everyone, albeit for different reasons. Using the above steps, you can make a mediation work effectively and successfully to help your client get past their dispute quickly, and hopefully, to their satisfaction. After all, perhaps one of the best things about getting to the end of the "yellow brick road" is that everyone earns the ability to move on.

) 1998-1999 Littler Mendelson, P.C.

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