Pre-Mediation: How to Win (or Lose) Before You Start

(This article is Part 3 of a series by David Rocklin on the mediation process.)

In our last article, we talked about some of the reasons to recommend mediation to your clients. Certainty, closure, and cost control to name a few. Now, let’s talk about how to prepare your client for mediation before you even get into the room. A thoughtful approach to the mediation experience can make a world of difference.

It’s all about managing expectations and marshaling resources. Let’s start with the expectation game. What do you and your clients expect from mediation?

It may not just be a settlement. Here are a few things that, in my experience, clients on both sides are seeking:

(1)   Vindication: This isn’t just the plaintiff’s goal. Parties on both sides will feel under the microscope in any litigation, and mediation, after all, is a microcosm of that litigation, complete with lawyers, a ‘decision maker’ (mediators aren’t really like judges at all, but the parties can at times come to see them in a similar light), direct questioning, briefs and arguments. Given that pressure, it’s only natural that the parties want to hear that they’re right, and therefore entitled to their position (and by extension, entitled to stick with that position and not move much during the course of the mediation). It’s important to surface that expectation early and examine it together, as this is one expectation that in all likelihood won’t be met. Punishing the other side is a related and equally difficult expectation to fulfill.

(2)   The exit: At first glance, this seems like a good thing. Parties coming in with this expectation want to settle and “get it over with.” Perhaps there are external factors weighing on the clients. Family dynamics, corporate/business decisions awaiting disposition of the case, outside funding sources about to dry up, and the like. However, anxiety and haste may make for rash decisions, unclear thinking and inaccurate valuation, and could signal the other side that an advantage can be taken. It’s important, therefore, to make sure you have your finger on your client’s pulse. Together, we can keep all sides calm, methodical and focused on a settlement that, while perhaps not optimum, can be lived with.

(3)   Free discovery: Particularly in mediations occurring early in the life of a case, parties hope that a session will yield more than the bare allegations in the other side’s papers. A witness, an email or two, anything that hasn’t yet been disclosed, and perhaps the other side’s posture and/or monetary assessment will make more sense. This is a reasonable expectation – if the other side wants you to come closer to their view, they need to inform you of those factors that comprise the basis of that view, and more importantly, they need to convince you of the merits of those factors. However, it’s critical that this expectation be a part of an overall approach to mediation that’s taken in good faith and with an eye toward resolution efforts. If you arrive at mediation intent on fact-gathering and nothing more, the other side will quickly deduce that you’re not serious, and will hesitate to engage in settlement efforts again (and certainly not at the monetary level they came in at this time).

(4)   Who are you, counsel? Are you a negotiator or a combatant? The role you and your client believe you should fulfill can drastically alter the mediation process. Both roles carry attributes that can help or hurt any effort to achieve resolution. Clarity on the part of client and counsel as to how the mediation should be approached, leavened with counsel’s objective advice on which role should be emphasized, will go a long way to a successful mediation.

There are as many expectations of the mediation process as there are parties attending. If we can surface those expectations early – ideally, prior to mediation (and in that regard, I’m always available for pre-mediation meetings or teleconferences/Skype/Facetime sessions to assist in that regard), we can make the mediation itself more productive.

Now, let’s talk about marshaling resources.

First, are other parties involved, either as formal parties to the litigation, as Does, or as potential additions to the case? If so, efforts should be made to explore whether and under what circumstances such parties ought to be included in the mediation process, directly or through representatives. Their relative level of involvement, potential culpability, ability to provide settlement authority, and relationship to the primary parties, all are factors to take into account. Extrinsic factors such as solvency, indemnification obligations and overarching business relationship concerns, can also be detected and weighed early on. It may additionally be beneficial to all parties to participate in a process that ends not only with settlement, but with a biding confidentiality agreement.

Another critical component in the parties’ resources is the presence (or absence) of insurance coverage for the dispute at issue. In our next blog article, we’ll take a closer look at some of the dynamics decision makes – including carrier representatives – utilize to arrive at an assessment of whether to mediate and how much value a case carries.