Mediation has been a fact of life in the California court system for a
number of years. Court sponsored mediation exists throughout the state
in some form, and is designed to encourage mediation in order to help
relieve a burdened court system. Notwithstanding the extensive focus on
mediation in recent years, some attorneys still do not fully understand
the dynamics of the mediation process, and thus fail to fully
appreciate the unique opportunities that mediation offers to obtain a
favorable result for the client. Consider the following suggestions
when approaching mediation:
PARTICIPATE WITH A POSITIVE ATTITUDE: First, an attorney should always view mediation as an opportunity, and should approach
mediation with the intent to participate in good faith. Note
particularly that the goal of legal counsel does not change in
mediation: An attorney wants the most favorable outcome possible for
the client considering the expense and risks associated with continued
litigation. Mediation offers a pretrial opportunity to communicate
directly with opposing parties, legal counsel, and a third party
mediator, to argue the strength of the client’s position, and attempt
to undermine the position of the opposing party. Convincing the
mediator of the strength of your position might go a long way to
convincing the opposing party, resulting in a favorable settlement.
TAKE THE TIME TO EDUCATE THE MEDIATOR AS TO THE FACTS AND LAW OF THE CASE: As an attorney facing mediation
you should fully prepare. This includes providing a compressive legal
brief that states the facts and applicable law from the point of view
of the client. The mediation brief should be in the same form as a
memorandum of points and authorities, designed to convince the mediator
of the strength of your position. Provide copies of all cited authority
appropriately highlighted. Openly discuss the downside of the case and
provide argument minimizing its significance. State precisely what your
settlement position is, and why?
TIME MANAGEMENT: Experts
writing about mediation have often discussed the psychology of
negotiating, including acknowledging the key role of time. Effectively
dealing with the passage of time during mediation often affects the
final outcome. During the mediation there will likely be periods,
perhaps long periods, of idle time, as the mediator moves from one
caucus session to another in an attempt to resolve issues and settle
the case. This can create tension and anxiety. The attorney should
consider bringing office work with him/her to fill this time, as should
the client. Filling this time productively will ease the stress created
solely by the passage of time and will minimize the temptation to
conclude the mediation through a less than optimum settlement.
Otherwise, as the day wears on, the client may want to just get the
thing over with—whatever the result.
LET THE MEDIATOR CONTROL THE PROCEEDING: Too often attorneys in mediation become too controlling of their clients and
the mediation process itself. Relax, and let the mediator dictate the
procedure. Although prior to the mediation it is certainly legitimate
for the attorney to instruct the client, and establish client control,
the attorney should otherwise allow the mediator reasonable leeway to
control the participation of clients. Let the mediator press your
client within reason, if necessary, to move the client to a more
reasonable position. A good mediator will know how to do this while at
the same time strengthening your attorney-client relationship, rather
than undermining it. If you believe the mediator is wrong in his/her
assessment of the case, discuss this with the mediator privately,
pointing out why you think his/her assessment is incorrect. However,
do not be afraid to agree with the mediator, and reevaluate your
position, if he/she provides sound reasons why your case may not be as
good as previously thought. Stubborn adherence to an unreasonable
position simply for the sake of pride does not serve the interest of
the client.
DISTRIBUTIVE BARGAINING:
Often a mediation comes down to simple distributive bargaining, i.e.
negotiating a dollar settlement amount from two opposing positions.
Some tips when engaged in this process: (a) Don’t present any
unreasonable demands—except as a response to an unreasonable demand.
Your initial demand should be at the high or low end of what would be
considered reasonable depending upon whether you represent the
plaintiff or defendant respectively. An unreasonable demand will create
animosity, provoke an unreasonable responsive offer, and will not be
effective in establishing the upper or lower limit of the
negotiation; (b) Once you are in the “zone of reasonableness” do not
move at all until you are convinced that the opposing side is also
within this zone. The mediator can be very effective in helping the
parties to identify where this zone is and to get within it as quickly
as possible; (c) Once within the zone, it is generally better to make
small concessions over time, corresponding to the concessions of the
opposing side; (d) Do not allow intimidation tactics to affect your
negotiation position. Every concession should be based upon a
reasonable, logical assessment of facts, law, and risk. Strictly ignore
all behavior—from whatever source— that is calculated to threaten or
intimidate.
REALISTICALLY ASSESS THE RISKS: Part
of mediation is for the parties to compromise through an independent
assessment of the risk of not settling the case. Generally, this risk
may include the following considerations: (a) The psychological strain
of going through trial; (b) The uncertainty of the outcome of trial;
(c) The costs and fees associated with a prolonged litigation; and (d)
The effect of a prolonged litigation on family and business
relationships. Personal aspects play an important part of this
assessment, including, financial status of the parties, ages of the
parties, time available to participate in the legal process, health,
etc. Ask yourself and your client what is the best and worst case
scenario if the case doesn’t settle. Realize that it is a fact of
life that litigants do not come to the table as equals. Personal
circumstances, including the willingness and ability to assume risk,
will determine to a large extent whether a case will settle on the high
or low end of what is reasonable.
GET THE SETTLEMENT AGREEMENT IN WRITING:
If the case settles, get at least a preliminary settlement agreement
signed immediately—at the mediation. If at all possible make the
agreement expressly binding of itself, and not merely a memorandum of
understanding.
FOLLOW-UP: If
the case doesn’t settle, take the time to assess why. If possible,
leave the mediation with good feelings, with a commitment to either
keep discussions open, or re-open them at a future time
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