How to “Win” in Mediation: A Three-Step Guide for Attorneys


By Steven L. Smith

 

Most jurisdictions have embraced alternative dispute resolution requirements to lessen the burden on the judicial system.  Mediation has proven to successfully resolve the majority of cases and in so doing, minimized the expense, tedium and anxiety imposed on the parties.

 

One of the keys to winning at mediation is thorough, conscientious preparation of yourself, your case and your client. The latter is particularly important considering the advent of teleconference, or Zoom, mediations. Unfortunately, mediation preparation often falls to the bottom of the priority list and is accomplished through a quick phone call, or a short discussion as the lawyer and client walk into the mediation session. While a “win” may be elusive, thorough preparation will maximize the litigants’ likelihood of success.

 

Prepare Yourself

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” — Abraham Lincoln

 

Litigation is modern warfare, and the litigators are the infantry. Battle-hardened litigators assault the opposition with written discovery, depositions, and motions practice to weaken resolve and expose weaknesses.

 

However, mediation is not litigation. I have watched many attorneys, young and old, confuse the two processes, inevitably resulting in impasse. It is critical that counsel appreciate that mediation is a cooperative problem-solving endeavor. This requires a different approach and mindset than litigation. The swords must be beaten into plowshares for the soldier to become the peacemaker.

 

To accomplish the transition, counsel should consider the following areas of preparing themselves for mediation.

 

1. Prepare your case as if for trial with a full understanding of the facts, legal claims/defenses, and damages.

 

Attention to detail is the hallmark of a professional. As a mediator, it is incredibly disappointing when counsel have failed to review the file and cannot articulate the claims and damages with precision. By rationalizing “it is just mediation,” unprepared counsel can doom the process to failure.

 

2. Strive for objectivity. Critically evaluate your case.

 

Lawyers generally overestimate their likelihood of success. Be sure to consider not only the strengths of the case, but the weaknesses that may undermine the case at trial. Counsel should make a list of the worst documents, witnesses, or facts – and discuss them with their clients. They say that a “litigator” is defined as an attorney who have won cases they should have lost, and lost cases they should have won. No one is omniscient, but a lawyer must consider all the ways in which a case may go awry.

 

3. Consider the strengths of the other party’s case.

 

It is axiomatic to say that a key to mediation is walking a mile in the other party’s shoes. Your adversary believes in their case with the same conviction as you do. Thorough preparation includes understanding not only your own strengths but acknowledging the strength of the other party’s case. What is the party’s best argument? What evidence supports that position? How are you going to overcome his or her arguments, and what evidence can you provide to the mediator for use in caucus to undermine those arguments? Failing to adequately consider the other party’s strengths will inevitably cause counsel to improperly gauge and explain the risks of not settling.

 

4. Mediation is not adversarial. Set aside your warrior’s armor and participate as a problem-solver.

 

Given the psychological makeup and training of most litigators, this can be difficult. However, it is essential that counsel appreciate their peacemaking role and not be drawn into a battle. Unfortunately, an adversarial approach to mediation is rarely successful. Remember, people don’t like bullies, and people pay people they like.

 

Prepare Your Case

“By failing to prepare, you are preparing to fail.” –Benjamin Franklin

 

Once counsel have mentally and emotionally prepared themselves for the mediation process, it is important to organize the information for presentation during open session and to the mediator in caucus.

 

1. The Pre-mediation Statement

 

In my practice, I request that no later than five days prior to the scheduled mediation date, counsel submit a pre-mediation statement including the following:

 

  1. A brief statement of the facts;
  2. A list of the issues to be resolved;
  3. A list of attendees and their role in the matter;
  4. A detailed list of damages sought and the calculation thereof;
  5. A description of the procedural posture;
  6. A description of any prior settlement negotiations;
  7. Identification of any significant obstacles to settlement; and
  8. Attaching any key documents.

Methodically organizing the case will streamline the opening session and flatten the mediator’s learning curve. Do not be tempted to simply provide the pleadings. While those may outline the claims and defenses, they do not address the categories above and rarely offer insight into potential resolution. The parties may choose to keep the pre-mediation memos confidential or to be shared with the opposing party.  In some instances, counsel provide both a public memo and a confidential memo for the mediator’s eyes only.

 

2. Opening Statement

 

I disagree with the current trend of dispensing with opening statements. Akin to an opening statement at trial, an opening statement can set the stage with a brief recitation of facts and explain claims and damages. Counsel should be prepared to provide a brief, concise opening statement covering the pre-mediation memo topics. Counsel should refrain from unprofessional commentary or engaging in insults or harassment. A logical presentation of facts, supported by documents, is far more persuasive.

 

3. Pre-Mediation Call

In advance of the mediation, counsel should schedule a Zoom call with his or her client and the mediator. During this call, the participants can ensure familiarity with the Zoom process, discuss mediation preparation, and discuss any documents or evidence that have yet to be produced and may interfere with resolution. Such calls flatten the learning curve and minimize the length of the mediator’s opening. These calls also minimize the client’s anxiety about the process and digital interface.

 

4. Prepare a Draft Settlement Agreement

 

Prepare a proposed draft settlement agreement identifying the material terms for the final settlement agreement and any proposed release language. The terms of the release are particularly important if insurance companies or sureties are involved. Provide the proposed settlement agreement to the mediator and opposing counsel before the mediation; this will greatly shorten the drafting process at the conclusion of the mediation.

 

5. Identify and Provide Key Documents to the Mediator for use in Caucus

 

It is often tempting to frontload your mediation presentation with damaging documents and deposition quotes. Unfortunately, bludgeoning your adversary during open session is often unpersuasive. In addition, it causes knee-jerk defensive reactions or fear. Neither are conducive for settlement. However, a mediator’s use of such incendiary information can be very persuasive behind closed doors. Identify key documents and provide them to the mediator throughout the process for maximum effect.

 

Prepare Your Client

Finally, and perhaps most importantly, counsel should thoroughly prepare their clients for the mediation process. In addition to discussing the process itself, counsel should engage in a candid discussion Fully discuss the realities of litigation including the expense, delay, distraction, emotional toll, and unpredictability of judges and juries. Address the potential outcomes of trial and consequences of each and calculate the fees and costs through trial (including fee shifting, if applicable).

 

You’ll also want to cover the process and purpose of mediation, including the role of the mediator, the goal of settlement and closure rather than victory, the role of opening statements and caucuses. Make sure your client is aware of the confidential nature of the process and all communication during mediation, and that you will play a different role at mediation (from “litigation warrior” to mediation advocate and problem-solver.

 

Tell your client to prepare for a long and potentially draining, emotional day, and stress the importance of focus, patience, flexibility, listening, and open-mindedness. Provide your client with a realistic and honest case assessment including the weaknesses and vulnerabilities of the case and explain the claims and damages calculation and the other party’s claims and defenses ahead of mediation.

 

You will broaden your client’s understanding of the dispute by encouraging your client to think about the other side’s perspective and explaining how both sides’ needs can and should be met in settlement. Encourage a constructive, problem-solving approach.

 

You’ll also want to prepare your client to tell his or her story and have his/her “day in court.” Your client should expect questions from the mediator and be prepared to participate in the “negotiation dance.” When your client understands the sequential give-and-take of the negotiation process and knows what to expect, he or she can participate more fully in the mediation process.

 

My experience as both an attorney and a mediator demonstrates that if you prepare yourself, your case, and your client as described above, the parties will maximize the productivity of the mediation session — and substantially increase the likelihood of settlement.

 

 

About Steven Smith

Steven SmithFor over twenty-six years, Steven Smith was a trial lawyer dedicated to the construction industry. His practice focused on construction law and federal, state, and local government contract law. He counseled clients on both the prevention and litigation of construction law and government contract disputes. Steven represented construction and service contractors, owners, subcontractors, and suppliers on federal, state, and local projects, as well as private contractors on issues including bidding, bid protests, differing site conditions, changes, loss of productivity, delays, and terminations. Throughout his career, Steven represented client interests in hundreds of trials, arbitrations, and mediations from Maine to Florida. He has lectured and written extensively on construction law topics.

 

 

 



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