The first interview with your client is extremely important to your mediation success. You need to determine and understand what your client wants and whether that position is reasonable based on the law and the facts.
This is best accomplished by visualizing your ladder to mediation success. Listen to the way your client tells the story. Assess the strengths and weaknesses of your position in the case. Do not wait until the successful mediation is slipping from your grasp to understand the "Achilles' heel" of your case.
- First Rung: Selecting the Proper Mediator. Determine what background or experience is desired in the mediator in your particular case. Do you want an evaluator or a facilitator? Is the mediation process or the settlement value more important? Colleague recommendations about mediators are valuable.
- Second Rung: The Mediation Date. This is critical. It's a true instance of "one size does not fit most," let alone all. Depending on your case, should you mediate before filing, shortly after filing [but before discovery], after some discovery, after exhaustive discovery, or before or after the trial setting conference?
Family-law cases involving child custody may benefit from early mediation. In negligence cases, the issues of liability, causation and reasonable compensation often are interlocked, and some discovery is necessary. The press of the statute of limitations often mandates filing before a discussion of mediation can begin. Cooperative exchange of accident, medical and damage information may allow early mediation. The expenditure of large sums of discovery money on the "average or typical" soft-tissue case may become the major roadblock to settlement. A case of a major injury, such as quadriplegia or mental impairment, won't be seriously considered by defense until it is medically verified.
In a real estate case, both sides need to obtain, examine and understand the import of the documents. A construction-defect case needs damage, causation, evaluation, possibly apportionment analysis and all the necessary parties in the case before meaningful settlement discussions can occur. The marshaling of this information coupled with the difficulty of finding/serving subcontractors and verifying coverage often renders mediation before filing or shortly thereafter ineffective.
Early mediation, even before the complaint is filed, often is appropriate in probate/trust/estate disputes as well as business relationships. If the parties have a history of "family" or a "good business" arrangement, they probably want to preserve that relationship. This is particularly true in business, where the next contract can be part of the consideration leading to settlement.
- Third Rung: Preparation. Mediation preparation focuses on negotiation. Much effort by the attorney will center on preparing the client. For the defense, this includes preparing the wise and weathered claims adjuster.
Good mediation attorneys discuss possible settlement ranges with their clients before the mediation. Great mediation attorneys also explain the negotiation process and explain that the opening settlement demand and offer bear little resemblance to the settlement value. Puffing is a recognized negotiation tool.
Usually, both sides anticipate a reasonable settlement range, and a demand way out of that range draws an offer way below it. The prepared client understands this is puffing; the unprepared client does not and often become hurt and defensive and an unwilling participant in the process.
Great attorneys also communicate effectively with the mediator. This does not suggest a brief with your "bottom line" exposed. It does suggest that the attorney educate the mediator about the client's case and the law. Confidential briefs should be so marked. The timing of a brief's submission is critical: Not less than five calendar days before the mediation date is best. This allows time for its reading and consideration of possible problem areas. Instead of a hurried brief, an opening statement may be better.
- Fourth Rung: Patience. The mediation process may become tedious. The time needed to reach settlement may be shortened by pre-mediation preparation and communication with the other side. A bottom-line demand or top-dollar offer presented too early or without discussion interferes with settlement prospects. When you become dissatisfied with the process, don't take it out on the other side or the mediator. Instead, refocus, remember your settlement goal and continue to negotiate.
- Fifth Rung: Willingness to Re-examine and Compromise. When new information is presented, be objective. If you think it may be damaging to your side and are unsure of the rebuttal evidence, re-evaluate your pre-mediation analysis. If the information affects your analysis, could a jury feel the same way? When the verified insurance limits are lower than you understood, consider your prior demand. Although you may believe the case has greater value, will your client ever collect anything beyond the insurance? On the other side, if the verified injuries are greater than you thought, make the call for more authority.
If you are comfortable doing so, share your revaluation with the mediator, and try to gain the mediator's thoughts or advice. Once you take the ball out of play, the only avenue left is trial, where controlling the ball may be much more difficult.
- Top Rung: Signing the Settlement Agreement. Do not leave the mediation without reducing the settlement to writing. If you have a proposed settlement agreement, put it in your laptop, and bring it to the mediation. Do not wait until tomorrow to have your staff prepare the agreement so it can be signed and sent to the other side. A handwritten agreement is preferable to waiting. If buyer's remorse sets in on either side, the settlement negotiations will have to resume or trial preparations commence.
John C. Woolley is a mediator and arbitrator with
JAMS based in Southern California. A retired judge of the Superior Court in Orange County, he has handled thousands of multiparty, complex civil disputes.
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