Ready, Set, Mediate
ALTERNATIVE DISPUTE RESOLUTION: Failed mediations are generally the result of poor preparation. Spending sufficient time in advance lets both lawyer and client get the most out of the process. By William A. Quinby
The beauty of mediation is that the process can be anything the parties want it to be. The choices range on a continuum: At one end is a strictly facilitative mediation (sometimes called a "true" mediation), where the mediator simply helps the parties negotiate a deal. At the other end is a strongly evaluative mediation, closer to a traditional settlement conference, where the mediator expresses opinions about the parties' positions, the evidence and the law.
Counsel should not only reach an agreement on which approach is best to resolve the dispute but should also agree on when the mediation will occur, what discovery is essential and which other ground rules, if any, are appropriate. The starting premise, of course, is that the parties have (or will have by the time the mediation starts) enough information to intelligently evaluate their cases.
One of mediations greatest advantages is the control the parties have over who the mediator will be. While forum-shopping may be frowned upon in other forms of dispute resolution, it is an important part of the mediation process. Ex parte communications with prospective mediators are not only proper but encouraged.
Unless the practitioner has used a potential mediator's services before, counsel and client should interview the mediator to determine if the mediator is qualified to help resolve the dispute. The mediator should be asked specific questions about factors that are important to the case. Counsel should also ask around about the mediator's reputation and should consider creating a data base that shows subject matter, results and other relevant facts pertaining to cases in which a particular mediator's services were used.
Among the several significant factors that should be considered in selecting the mediator are mediation style, training, experience and areas of substantive expertise. For example, some mediators rely heavily on separate caucuses to move the process along, others do so only when asked and a few actually discourage the approach. Similarly, different mediators require different kinds of pre-mediation submissions. Knowing a mediator's preferences in these areas helps not only in choosing a mediator but also in preparing the case for the mediation.
Likewise, counsel should ask specific questions about a prospective mediator's training, as well as actual mediation experience, including the nature and number of cases mediated. When asking about the mediator's experience, also ask for names of attorneys who have used the mediator's services and then call those attorneys.
Mediators who use a facilitative approach will say that substantive expertise is not important because mediation is "process-driven." Of course, a mediator should have strong process skills, but it is at least as important to have a mediator who is familiar with the matters in dispute. Even a modicum of subject-matter expertise permits the mediator to more credibly play the devil's advocate and provide reality checks through educated evaluation of the issues, both of which are effective tools in helping the parties reach resolution.
Finally, when choosing a mediator, clarify the retention. Possible conflicts of interest must be dealt with, as well as the prospective mediator's availability and fee schedule. Always ask if the mediator has a cancellation policy. The mediator may charge for a day of services if the matter is continued or canceled.
Once the mediator has been selected, a decision must be made about who will attend the mediation. Counsel must also prepare the client and assemble the required pre-mediation submissions.
Experienced mediators generally agree that the final decision-maker - the person whose presence is truly necessary to reach a full settlement of the dispute - must be physically present. Where there are individual parties, they have to attend. In all other instances, the person whose consent to settle is required must be there. This is particularly true in California since Levy v. Superior Court, 10 Cal.4th 578 (1995), where the Supreme Court held that the litigants themselves, not their attorneys, must sign the settlement agreement for it to be enforceable pursuant to Code of Civil Procedure Section 664.6. In the occasional instance where a party representative other than the final decision-maker attends, the representative should be someone whom the final decision-maker trusts.
Bringing an expert witness to a mediation can be extremely effective, especially in a very technical dispute. Much as a mediator with subject-matter expertise can provide a reality check to the parties, a true expert can educate everyone, including the mediator. But the expert -and the client - must understand that the expert is there not to give one-sided opinions as a hired gun, but to answer specific questions essential to increasing settlement prospects.
Helping the client understand how mediation is different from litigation or arbitration is a critical part of a mediation advocate's preparations. To make the process work to their advantage, clients need to understand the differences in the roles of the neutral, counsel and the parties. The client should be told that the mediator is impartial, has no decision-making authority, will maintain confidences and will likely play the devil's advocate in testing the weaknesses of each side's position. Counsel should also brief the client on the mediator's training, experience and reputation.
The actual mediation process should be reviewed with the client This includes the pre-mediation submissions, the introductory phase, the opening statements, the joint and separate caucuses and, in most cases, the memorandum of agreement. The explanation should be such that, when the mediation actually occurs, the client will understand exactly what is going on and why.
The client must be told that counsel's role is markedly different from his role at trial, in arbitration hearings or at depositions, in several respects:
- For strategic reasons, only some parts of the case may be presented at the mediation.
- Few, if any, objections to evidence will be made.
- Counsel (and the client) will be open and candid with the mediator in separate caucuses, and if counsel acknowledges weaknesses in the case, it is for a good reason.
- Counsel (and the client) will be more conciliatory than at trial. Mediation is not the place for "in your face" posturing, threats and ultimatums; this behavior is truly counterproductive. The goal of the parties and the mediator is to create a cooperative atmosphere that is conducive to resolving the dispute.
- If counsel expresses empathy for the other party's position, it is for a good reason.
Counsel should keep In mind that the mediator Is not making any decisions - the parties are.
When explaining the client's role, the practitioner must first evaluate how active the client should be in the mediation. This depends on such things as the client's skills as a communicator, the need for the client to "vent" by telling his story before seriously negotiating and how effective the client will be with the other parties and their counsel. An articulate client who actively participates in these aspects of the process can be extremely effective.
Whether or not the attorney counsels the client to play an active role, the mediator will almost always encourage the client to be open and candid. Counsel should review with the client the sorts of questions the mediator is likely to ask, and discuss how the client should respond - in much the same way as a client would be prepared to testify in a deposition or at trial. Unlike in those adversary settings, however, a client in mediation really does not have to answer, at least not with the other side in the room. The client can be assured time may be taken, if necessary, for a confidential conference.
Finally, clients should be encouraged to listen, evaluate and, above all, keep an open mind during the mediation.
Occasionally, a mediator will ask for confidential position papers that are not exchanged but submitted in advance to the mediator alone. More often, the mediator will request that the parties exchange position papers. If there are matters that can be stated only in confidence, separate briefs on those topics can be submitted to the mediator alone.
Counsel should keep in mind that the mediator is not making any decisions - the parties are. Thus, the audience for the position papers is the other party and opposing counsel, not the mediator. The same is true of opening statements and any other joint exchanges of information: The person who needs to be persuaded to settle is the other party.
The written statements need not be lengthy, but they should include a brief statement of factual and legal issues and the party's position. Critical documentary evidence should be attached to the statement. This might include pertinent contracts and documents; answers to interrogatories and key excerpts from deposition testimony; damage itemizations; and expert reports, if any. Copies of relevant pleadings and pertinent case law may be helpful, especially if the parties expect the mediator to play an evaluative role. Demonstrative evidence is also a persuasive tool, since it helps everyone focus on specifics.
The mediator may also request a history of previous settlement discussions and a brief discussion of any subjective factors that bear on the parties' prospects of reaching resolution. Time spent preparing a concise and persuasive mediation statement and reviewing the statement with the client will significantly increase the likelihood of a successful mediation.
Failed mediations, like unsuccessful trials and arbitrations, are generally the result of counsel's poor preparation. Selecting the most appropriate mediator, determining who should attend the mediation, educating the client about the process and spending time to prepare persuasive pre-mediation submissions will allow the practitioner to make the most of mediation and to get the best results for clients.
William A. Quinby, a former litigation partner with Crosby, Heafey, Roach and May in Oakland, is a mediator and arbitrator affiliated with the American Arbitration Association's Center for Mediation In San Francisco.