This article is based upon Mr. Eiseman’s lecture at ABA Seminar in Las Vegas, November 9-11, 2005.
As mediation has increased in popularity the last decade or so, it can no longer automatically be considered an optional, voluntary pit stop on the road to litigation or arbitration. In large part due to its success, it is more frequently becoming a mandatory process both in and out of court. Many judges now routinely require litigants to participate in mediations prior to trial and, as construction attorneys can attest, certain standard form construction contracts (such as those of the American Institute of Architects and The Associated General Contractors of America) now require “mandatory mediation” as a condition precedent to being ale to proceed to binding arbitration or court.
1. Do Not Underestimate the Value of Your Opening Statement,
Frequently the mediation is the first opportunity for all of the parties and their counsel to meet together without the formalities attendant to pre-trial deposition or court proceedings. When you present your opening statement, you should bear in mind that it is an opportunity for you to share your client’s view of the case directly with your adversary’s client who will be sitting at the table and listening to you. Sometimes an effective presentation of your case–unfiltered and without interference or interpretation by opposing counsel–may cause the other party to question whether the issues (and their resolution) are really as “black and white” as they first seemed. Remind your client: “There are not two sides to every story; there are two or more sides.”
Of course, you should not be vain enough to believe that, as a result of a persuasive opening statement, the other side will cave, but it is not unrealistic to expect your adversary=s client to begin having some second doubts about the strength of his or her case. You want the other side to say to themselves, “I don’t take much stock in what the attorney just said, but I can see, under certain circumstances, how a reasonable person might be persuaded to agree or find merit in their position.” If you can accomplish this, and your adversary does the same with your client after his or her opening statement, both parties will be drawn closer to the center and the mediator’s job will be all that much easier.
2. Leave the Adjectives at Home.
Experienced mediators and advocates will tell you that while a trial or binding arbitration is all about winning, mediation is all about compromising and reaching a settlement where no one is happy, but no one is so unhappy that they will not voluntarily agree to it. With that premise and bearing in mind the old adage that you get more with honey than by stinging someone, resist any temptation to make ad hominem remarks or to employ what the other side may consider to be “Rambo-like” tactics. Even if you are correct, the points you make in attack-mode may be counterproductive. If the other side feels that they have been backed into a corner, odds are they will come out fighting and the mediation will not only fail, but it will have drawn the parties even farther apart.
3. At the Outset, Concede the Obvious Weaknesses in Your Case–Warts and All — To Gain Credibility and the Confidence of the Mediator.
Since the mediation will undoubtedly involve “shuttle diplomacy” where the mediator will be discussing your case in private with the other side, to the extent possible, try to use the mediator as your advocate. If you can convince the mediator that the strengths of your case clearly override the weaknesses, it follows that the mediator can be counted on to relay that message to the other side during the course of the negotiations.
There are times when the mediator can be counted on to do your negotiating for you. By being candid with him or her, just as you would with a judge or a jury when you deliberately concede certain weaknesses in your opening statement, this prevents your adversary from raising these points first and suggesting that you were trying to hide them and/or you have not evaluated your case honestly and objectively.
4. Know Your Mediator.
A large factor in whether the mediation will be successful is whether the parties share a mutual respect for the mediator’s experience, integrity and judgment. If the parties are given the right to select the mediator, as is often the case, it is critical to choose an individual who has expertise in the subject matter of the dispute and whose independent opinion will have some “sway” with both sides. If the parties believe that a judge or arbitrator may also see things the same way as the mediator does, it may lead to a more realistic assessment of the case and increase the possibility of settlement at mediation.
Apart from the qualifications of the mediator, it is important to know his or her style. Some are active participants in the process and unhesitant to offer their opinions about any of the salient issues or even who has the stronger case. Some resort mainly to role playing to bring out the pluses and minuses of each side. Others simply take a more passive role akin to acting as a messenger between the two sides. It makes sense to determine which style best fits your case and, after conducting enough due diligence about the prospective mediators to select a mediator whose style fits best with the particulars of your case.
Since the mediator’s charge is to broker a settlement and since presumably both sides are interested in reaching a settlement by virtue of their participation in the mediation, many advocates view the mediator as their partner.
5. Educate the Mediator Before the Mediation Session Begins.
Sophisticated mediators and advocates realize how important is for the mediator to have a full understanding of all of the facts, contested issues and the applicable law before opening statements are made. It simply makes no sense spending valuable time at the session trying to educate the mediator as to the basics. At that stage, emphasis should be on figuring out how to settle the dispute and to get the parties where they need to reach a settlement. Pre-mediation briefs and even copies of key pieces of evidence should be submitted ex parte to the mediator well before the start of the mediation session. It may also make sense for counsel and the mediator to speak to one another via pre-mediation telephone conferences to answer any questions the mediator may have about the basic facts or law.
6. Prepare Your Client.
First, you should give your client a realistic expectation of what you expect to occur at the mediation. The more familiar your client is with the process and what he or she can expect to hear from the mediator and the other side, the more at ease your client will be and the more susceptible to concentrating on what it takes to settle the case. Educating your client will also enable you to do things which are in your client’s best interest. For example, if you explain how it is to your client’s benefit for you to admit the weaknesses in their case, you are free to do so without any concern that you will be admonished by your client for giving away the farm.
Second, you need to consider what your client’s role will be at the mediation. Many advocates believe that it is important that their client “speak his or her mind” at one point during the initial joint presentations. It may not only be cathartic, but it may also send the message that your client is well-prepared and will make a credible witness. Also, if handled properly and respectfully, it may actually engender some good will which may gain momentum as the mediation progresses.
Third, you must thoroughly review with your client what can be expected to occur–both legally and from a business and monetary perspective–if the case does not settle at mediation. As we all know, undertaking an honest cost-benefit analysis is a critical element in any negotiation.
7. Prepare Yourself.
Do not falsely assume that in light of the consensual and non-binding nature of mediation, it is not yet necessary for you to know your case inside and out. To the contrary, if you do not have enough information or too many important questions remain unanswered, try to re-schedule the mediation to a time when you are comfortable with your case. If that means adjourning the mediation until the parties take a couple of key depositions or issue expert reports, so be it.
To the extent possible, in general, keep your presentation short. A five or ten minute Power Point presentation may do the trick as will a short summary sheet itemizing your client’s damage claim or affirmative defenses.
Decide how much of your evidence you should reveal in mediation, trying to strike a balance between (i) the litigator’s concern that if the mediation is unsuccessful, whatever element of surprise which otherwise may have existed at trial or at arbitration may be nullified and (ii) the reality that if your adversary is experienced and well-prepared, typically, there will be few, if any, surprises later to pull out of your bag of tricks.
Lastly, determine whether any ways exist to settle the dispute involving other than solely the payment of money. If the parties have (or could have) a continuing business relationship, can the settlement be tied into some future business transaction? If resolution of a construction dispute involves correcting defective work and supplying labor and materials to do so, and the owner has not yet hired a replacement contractor, can a settlement be structured among the owner, contractor and subcontractor whereby each contribute something to the repair? Simply put, give serious consideration to any “out of the box” ideas which may make sense. It is important for everyone to realize that at court or in binding arbitration, everyone’s time and effort is placed on winning with the judge, jury or arbitrator only having authority to award or deny money damages.
– Neal Eiseman, Esq.