Mediation is About Cutting a Business Deal

Mediation is popular with business people and their counsel because it is a low risk process with a remarkably high success rate. It is far less expensive than trial since it usually takes only a day or two and avoids costly discovery and employee downtime. Even more importantly, mediation allows participants to avoid the risk of going to trial and sometimes offers a chance to preserve business relationships.  Participants appreciate the fact that the process is confidential so that their business problems and intellectual property are shielded and that parties maintain some control of the outcome rather than perhaps live with an adverse judgment.

Some keys to mediation success:

1. Submit a brief that outlines the facts of the case and the applicable law. Focus on the key issues, including damages information. While lengthy legal arguments may be important at trial, they are not usually the basis for a mediated settlement. You do not need to attach your Complaint or Motion for Summary Judgment, but instead include some thoughts about possible resolution. Mediation is about cutting a business deal.
2. Exchange briefs. Mediation is enhanced when participants are aware of the arguments of their adversaries and have had a chance to consider a response. Include information in the briefs that might help the decision-maker on the opposing side to understand your client’s point of view and possibly reevaluate their settlement position. Exchanging briefs helps the parties prepare to move promptly into meaningful negotiations.
3. There may be confidential information that you do not want to share, such as your client’s business goals, your perceptions of obstacles to settlement, or preliminary thoughts about a business resolution. Be candid with the mediator. Send that information in a side letter for the mediator’s eyes only or request a call to discuss your concerns in private. There is no bar to ex parte communication with a mediator.
4. Participate in a pre-mediation call. You may request the mediator’s help with an informal exchange of information or discuss some ground rules. An experienced mediator will help design a process tailored to your case.
5. Discuss a range of settlement options with your client. Consider how the case might look to the opposing side. There may be new information presented that will cause your client to re-evaluate. Or you might consider options that include offering something other than money. Sometimes parties come to an unexpected resolution such as an agreement for one company to purchase the other. Stay flexible and be willing to take a fresh look at the dispute. And keep in mind the difference between adversarial litigation advocacy and deal-oriented mediation negotiation.
6. Invite the decision-makers needed to close the deal. In order to streamline the process, select those who can speak in terms of issues and litigation risks while keeping emotions under control. Do not rely on attendance by phone. Mediation is a fluid process and a lot of information will come out as the day proceeds. A decision-maker who is not present will not be privy to the subtleties of important discussions and may miss important openings for settlement.

A mediated resolution is often a business deal that clients find to be superior to any remedy that might have been available at trial.  Make the most of this mediation opportunity!

Zee Claiborne, Esq. is a panelist with JAMS in San Francisco and specializes in the resolution of complex domestic and international business disputes. She can be reached at zclaiborne@jamsadr.com.