Tips for a Successful Mediation

WDC Journal Edition: Spring 2007
By: John M. Moore, Esq. - Bell, Gierhart & Moore, S.C.

Mediation has increasingly become a popular way for resolving disputes partly because of the certainty involved with settling a case rather than going to trial and taking your chances and further, it avoids expensive litigation yet resolves the matter in a fair and reasonable way. The numbers tell the story that mediation works, and lawyers for the most part have accepted the process as a useful element of their practice.

The basic intent of mediation is that an impartial, unbiased neutral third person, properly trained and skilled, may have the ability to serve as a catalyst to facilitate an agreement between or among two or more parties through the exercise of reason and common sense, coupled with a thorough assessment of the various risks involved with the uncertainties of litigation. Some are required to mediate by court order and others voluntarily mediate in order to avoid a trial on touchy issues.

One complaint heard is that mediation focuses too much on the transaction costs rather than on the merits of the case. Although costs are part of the discussion by any mediator, it should not be the focus of the mediation and that can be part of the strategy used by the parties in picking the mediator.

The mediator cannot require the parties to settle nor should it be the mediator's position to attempt to force a party to settle. The parties must come to the mediation with an open mind or there is little likelihood of a successful mediation being accomplished. There is little reason to waste the time of your opponent or the mediator if there have been settlement negotiations prior to the mediation and if it is clear to you that there is no chance of any change in your position or your client's position. In those cases the mediator and your opponent should be advised in advance, and if the matter has been court ordered, I suggest that a joint conference call be made to the court to involve the attorneys and possibly the mediator to discuss the need for the court ordered mediation.

The tips listed below may help you increase your chances of having a successful mediation:

Before the Mediation

1. Pick the mediator wisely.
Having the right mediator is often the key to a successful mediation. Many parties believe the merits of their case were secondary to the personality and style of the mediator. Different mediators have different styles and once you become familiar with the mediators in your area or through conversations with other counsel, use your best judgment in picking a mediator that suits not only your perceptions of mediation, but who will be most likely favorably received by your client. The mediator should not only have a personality that generally is accepted by most people, but also have the experience and background to evaluate and assess the merits of the respective positions of the parties.

2. Be prepared.
As part of the preparation process, conduct whatever discovery is necessary to educate yourself and your opponent on any significant issues in the case prior to mediation. Also, know your case. Unprepared parties make it difficult and more time consuming for the mediator as the mediator is forced to spend time educating the client, and sometimes the attorney, not only on the process but on the merits of the case itself. Preparation gives you the advantage of not being thrown off guard and also increases the likelihood of convincing the mediator of your position. Mediators differ in their opinion as to whether pre-mediation submissions should be exchanged or be confidential. I prefer to have the mediation submissions to myself be confidential in that I feel that it is more likely I will get a more accurate assessment from the attorney of his or her understanding and knowledge of the case. Whether the submission is exchanged or not, present a concise and well-organized submission. If the documents are not exchanged, it is helpful to the mediator to know in advance that you and your client identify and know the strengths and weaknesses of your case. I find many lawyers have not had a heart-to-heart talk with their client or clients before mediation. Therefore, the client has not heard anything but "optimism" concerning his or her case before the mediation and this requires the mediator to spend time discussing 'aspects of the client's case that they may not have heard about before. Sometimes this can be a disadvantage to the mediator in that the client or clients quickly lose confidence on the neutrality of the mediator. A good mediator will have been trained to spot such weaknesses and exploit them to convince the parties to settle, but being prepared for mediation includes knowing the soft spots of your case and developing strategies to deal with them.

3. Know the weaknesses of your opponent's case.
Be able to give the mediator the tools to whittle down your opponent by learning the weaknesses of your opponent's case before the mediation begins. As part of your pre-mediation submission, point out logical inconsistencies, factual mistakes, over-inflated positions, unproven legal theories and unrealistic damages claimed by your opponent.

4. Know your actual damages.
Many times I have sat down with the parties only to be surprised that damages have not been thoroughly explored by the attorney with his or her client. Knowing your damages includes not only what you consider actual damages, but also consequential damages and transactional costs. Speculative damages will be quickly dismissed and over-evaluated damages will be quickly whittled away. In my opinion, mediators in most cases should not use the tactic of emphasizing the cost of going to trial versus settling a case, but on the other hand, parties need to thoroughly understand the costs of pursuing litigation. Also, the mediator should know the status of settlement negotiations prior to mediation and if there is a specific reason why settlement discussions have ceased, why that occurred.

5. Contact subrogated interests in advance.
Successful mediations oftentimes require the active participation of parties who have a subrogated interest in the matter and it is important for the parties to have had contact with the subrogated parties prior to the mediation. This contact should include the sharing of independent medical reports or pertinent medical records that have a direct bearing on the claim being made by the subrogated party. Prior education of the subrogated interests before the day of the mediation improves the chances of having a successful mediation.

At the Mediation

1. Be sure that decision makers will be involved.
For mediation to work, all parties must involve persons in power to make a decision to settle the matter. It is preferable to have the decision maker present at the mediation, but when that is not possible, it may be sufficient to have ready access to them by telephone. If the decision maker is not going to be available in person, the mediator and the other parties should be made aware of that prior to mediation. It is extremely important that someone be available to make a decision during the mediation.

2. Presentation by the lawyer at mediation.
Most mediators shy away from formal presentations. I do not use those at all unless specifically requested by all counsel, but if given, they should be brief and based on the real issues of the case. In those mediations in which I have participated in which a formal presentation was made prior to the splitting up of the parties, on some occasions I have found it to be totally counterproductive if the presenter is making what I would consider a "closing argument." Mediation is not the forum for long-winded disclosure. Its purpose is settlement, not fact finding.

3. Use of summaries and photographs.
It is often not only helpful to the mediator but also beneficial in presenting your position to have summaries of damages or, in some instances time lines of medical treatment. Also, in some instances photographs may be helpful not only for the mediator but also for the mediator's use in pointing out to the other side information to support your position. It is not helpful to come to mediation with "new information" that has not been shared with the other side which includes damage summaries or information that has not been exchanged prior to the mediation in the discovery process but yet is pertinent to your case. Be sure you have backup information readily available to support your position.

4. Know your bottom line.
Although I do not find it a useful tool, some mediators often ask you to disclose your bottom line (the maximum you are willing to pay or the minimum you are willing to accept in a settlement). However, you should come to the mediation with a general understanding of the value of the case and having shared that with your client, but also be aware that your bottom line may change during the course of the mediation. Good mediators are adept at pushing the settlement limits by the mediating parties, and will work their skills on everyone involved.

5. Keep your emotions and the emotions of your client under control.
A good mediator will let the party express his or herself during the mediation but the lawyer needs to be in control of the situation. Aggressive and adversarial tactics that might be used in litigation generally don't work in mediation. As part of the mediation process it is important that the parties not become incensed or entrenched. You should be willing to make concessions in the mediation process that cost you little or nothing and don't let emotional issues stand in the way of settlement. Unreasonable expectations of the client should be disclosed to the mediator early on in the mediation.

6. Be prepared to make a business decision if necessary.
The goal of one or both of the parties is not always achieved. A final position from one side or the other is not always achieved, but it may take, in some instances, a good decision to resolve the matter. At least examine any proposed settlement from that perspective.

Mediation, once considered an experiment, is now a way of doing business. Based on the trend over the last decade, it has become a regularly used tool in resolving cases prior to trial. Mediation is never easy. It takes work, preparation and a hard look at reality. However, with a well chosen mediator, a good presentation and a willingness to listen and to make a decision, mediation is usually successful.

John M. Moore is a shareholder in the law firm of Bell, Gierhart & Moore, S.C. in Madison. His practice is focused in the areas of defense of personal injury, municipalities, mediation and arbitration.