PREPARING YOUR CLIENT FOR MEDIATION
A significant percentage of clients will have only one, or a few, experiences with the civil justice system in their lifetimes. In virtually all litigated matters, either a court-ordered or privately agreed-upon mediation session will be part of that experience.
But before the trip to the negotiating table, counsel and the parties should give themselves the best possible opportunity to obtain an excellent result, while ending the litigation and putting the case behind them. This article suggests additional useful preparation tools and strategies to consider when preparing for mediation.
Part One: Counsel’s Preparation/Initial Interaction With The Mediator
Briefs: After initial scheduling, Briefs are usually counsel’s first opportunity to interact with the mediator. Briefs are, quite obviously, an essential tool in preparing for any mediation, even in a small damages case. As in trial, a mastery of the facts and law is essential to obtaining superior results. An effectively prepared brief, even if relatively concise, forces counsel and the parties to think about case, its strengths and weaknesses, and issues that will arise in mediation.
Pre-Mediation Discussions and Information: These discussions are typically confidential between counsel and the mediator. In addition to discussing the essential preliminary points, i.e., whether a joint session would be useful, and assuring that all persons with full authority to resolve the case are present to negotiate, etc., it is also an opportunity for both the mediator and counsel to discuss the main issues or points of controversy raised in the briefs.
However, these discussions are not simply an opportunity for the mediator to dig deeper into the issues raise in the briefs. Counsel should use any pre-mediation discussion as an opportunity to listen to the mediator’s questions regarding the important issues. Pre-mediation conversations can also convey elements of the mediator’s style or demeanor, especially if counsel and the mediator are not familiar with each other. Mediators certainly pay close attention to the style and demeanor of counsel and participants, so counsel should avail themselves of the opportunity to do the same with the mediator. It is also important to search the mediator’s (or provider’s) websites and web pages, since it is becoming increasingly common for these sites to contain blogs, Facebook links or even short video clips in which the mediator talks about his or her experiences and approaches to the process. This is an often under-utilized tool that may provide valuable insight to resourceful counsel.
Part 2: Counsel’s Preparation With The Client:
If the client or representative is experienced and familiar with mediation, little pre-mediation communication may be necessary. However, whether dealing with a mediation veteran or novice as a client, counsel should communicate all appropriate information about the mediator and his or her preliminary questions or comments about the issues in the case.
In addition to relating as much information as may be appropriate from Part 1 of this article, counsel should unquestionably cover in detail the pros and cons of settlement versus proceeding to trial. A few of these items are:
- The claims and defenses, and their strengths and weaknesses
- The evidence that will be required to prove or defend the case
- The uncertainty of jury trials, court trials, the increasing restrictions on voir dire/juror interviews
- The cost of proceeding to trial
- The difference in net recovery (or in the case of a defendant, gross expenditures) between mediation and trial
- The mediator’s role in the mediation
- The role of the adversarial process in mediation
- An acceptable range for settlement
As to points 1 and 2, I have come to believe that in the cases of one-time or occasional litigants, both Plaintiff and Defendant, it is important to review with them what facts they must prove, what their burden of proof is, and what defenses must be shown or proven. Having to explain a burden of proof, legal standard or duty or an affirmative defense for the first time in the midst of a fast moving, stressful mediation is simply more information for a party to digest, and can severely derail the process. In the years I have served as a mediator, counsel (thankfully) have provided me with many outstanding briefs and mediation presentations laying out the law and the evidence. But the client should also know this information as well, and it is incumbent upon counsel to communicate this with them in an understandable manner before the mediation.
As to points 3 and 4, costs and uncertainty of trial and the unpredictability of juries are customary and standard issues to review. Counsel would be remiss not to explain this to his or her client.
As to point 5, a plaintiff hearing for the first time that a settlement of $35,000.00 may net him or her the same as a $50-60,000.00 verdict at trial will take time to digest, and given the often fluid nature of mediations, could result in information overload. It is thus best to review this concept in detail beforehand.
Without getting into other issues such as insurers’ increasing resistance to the “cost of defense” argument on questionable liability or damages cases (which is another article in itself, and something a plaintiff or petitioner must absolutely consider in deciding whether to mediate and how to evaluate the case), for a defendant business owner in a commercial case, the issue of continuing costs, legal fees (and time!) are of paramount importance. The costs should be reviewed beforehand, as should such issues as attorney fee and cost clauses in the operative contract, and if applicable, the effect of any offers to compromise under CCP 998.
As to Point 6, the client must know that the mediator’s role is non-partisan, and not aligned with any party. When I was starting out as a mediator, a veteran mediator once told me that “The mediator’s client is ‘the settlement’.” From the mediator’s perspective, mediation is the gradual process of closing the case, from the initial phone call or contact mentioned above to the signatures on a settlement agreement.
A few words about point 7, the role of the adversarial process in mediation. The overwhelming percentage of parties and counsel rightfully come to mediation “loaded for bear”, looking to present the best possible case. However, especially in the exchange of opening demands and offers, both parties and counsel can interpret unreasonable numbers as variations on Vinny Gambini’s opening statement in My Cousin Vinny, and threaten to walk out and terminate the mediation. While it is highly incumbent upon the mediator to control this process and discourage the exchange of “insult” or “pie in the sky” numbers, counsel should prepare his or her client that unrealistic initial numbers, or the slow progress into later rounds, is a distinct possibility and often part of the process. Even while offers and demands are exchanged, it takes time to get past positional bargaining, or chest puffing. I refer to these as “message numbers”, and depending on how the mediation progresses through this phase, the reasonable range of the true value of the case comes more into focus later in the mediation.
Finally, as to part 8, while it is necessary to have a clear view of case valuation, any valuation should be presented to and discussed with the client as a settlement range. As with a trial, “things happen” in mediation and flexibility is always necessary.
Addressing some or all of these points before the mediation will lead to a much more prepared and thoughtful case presentation. Better informed parties will also have a good understanding of the process and what to expect. In turn, the mediation should proceed much more smoothly and efficiently, and that can only increase the chances for a favorable resolution.
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. To schedule a mediation with Sean E. Judge, contact a case manager at (877) 258-8637 or via email: Mediation@CEDRS.com.