Dick and Jane Go to Mediation: a Primer for the Less Experienced Lawyer

“Dick and Jane Go to Mediation: A Primer for the Less Experienced Lawyer”

by Ronald G. Wiesenthal1

Introduction

When a lawyer walks into mediation prepared for a trial, it is like a diplomat carrying a pistol into a peace conference. Advocacy in mediation is different from advocacy in a trial.

The Difference Between A Trial And A Mediation

A trial before a judge or jury is a competition between opposing sides, the object of which is to convince an objective disinterested third party that one party, and not the other, is entitled to certain relief that is mandated by law as a result of the occurrence of an event. Trial advocacy is partisan. The occurrence (or non-occurrence) of an event is proved by eyewitness testimony, expert opinions, and tangible documentation. For each witness advocate of a party's position, there is an opposing witness. If the witness cannot be impugned for lack of accuracy, then the witness is impugned for lack of credibility. Experts are promoted as knowledgeable and reliable and decried as frauds and prostitutes. Photographs and documents are alternately labeled as proof positive or forgeries. At the conclusion of the testimony, the fact finder deliberates over the evidence and publishes its results in the form of judgment or verdict.

In contrast, mediation is a cooperative process in which the parties meet and work out an agreement to end their dispute. By its very nature, mediation forces each party to acknowledge and appreciate the opposing party's views and positions. Each side is presumably knowledgeable about the important aspects of his own case and presents those facts to the other party, who in turn responds honestly with facts and law that he feels governs the particular situation. All through this process runs a thread of risk analysis, i.e., how do the facts and law in discussion compare to the likely outcome if the same were presented to a judge or jury? At the end of a day of mediation, rather than submit disputed facts to an arbitrator for a decision, the parties weigh the benefits represented by the other party's offer against the risk and likelihood of a less beneficial resolution at a trial.

How To Pick The Mediator

In picking a mediator, the most important traits to look for are mutual trust and objective neutrality. All of the parties must be assured that the mediator has no personal agenda beyond settlement of the dispute. While some experience in the area of law made the subject of the dispute is helpful, specialization in that area is not mandatory. Many successful mediators have a background in transactional law rather than trial law. In picking a mediator, it is more important to look for a person whose legal experience is varied rather than one who has only practiced in a single area of law. The mediator should have had sufficient life experiences that allow the mediator to be sympathetic and understanding of the parties' situations. So, for example, in a divorce case, it might be preferable to choose a mediator who has personally been through a divorce. There is no substitute for personal experience when talking to a party about the emotional trauma of divorce. Keep in mind that in order to settle a dispute the parties must trust the mediator and be amenable to the mediator's opinions. A shared life experience can be more important than legal experience. At the risk of alienating some who may read this article, the mediator should be older. A more seasoned mediator brings a library of experience to the table that raises the comfort level of both the parties and their attorneys.

Picking a mediator is similar to picking a lawyer. When your client first called you, in all likelihood the client was referred to you by another client. Ask your colleagues for a referral, and do not be afraid to ask the mediator for references and about his legal and work experience. Unlike a judge, there is nothing inappropriate about calling a mediator and discussing your case outside the presence of the other party and attorney. Talk to the mediator about his personal philosophy of mediation and make sure it is compatible with your own. Find out if the parties will remain together during the process or whether they will be separated. You should know in advance whether the mediator sets the time allowed for mediation or whether that is done by the parties. It is important to know whether the mediator has the facilities for a mediation available or whether the mediator intends to use one of the attorney's offices instead. Finally, make sure the mediator has time for you. Mediation is a time-consuming, intensive process, and you are paying for a mediator's undivided attention. A mediator who has a brief due or a trial for which to prepare is not the best choice. Schedule your mediation for a day that everyone, including the mediator, can set aside for the business at hand.

Set Aside The Full Day For The Mediation

Mediation is a process, and it takes time. The attorneys, the mediator and the parties should set aside the entire day for the mediation. Successful mediations generally end in the early evening ,so do not schedule flight reservations, dinner plans or ball games the day of the mediation. Child care, car pools, baseball practice and dinner arrangements should be adjusted accordingly. Outside distractions should be kept to a minimum. Don't schedule a mediation the day before a brief is due or a trial begins (unless it is the trial of the dispute being mediated). In this respect a mediation is like a trial. It requires your undivided attention. Come to the mediation prepared to spend the day. No case should go unsettled solely because one of the parties or attorneys had an engagement away from the mediation.

Prior To The Mediation The Lawyer And Client Should Meet

No more than a week before the mediation the lawyer and client (or client representative) should meet together in person. The client and lawyer should use this time to review the facts of the underlying dispute and make sure that each is up to date on the status of the case. Relevant documents should be reviewed and discussed. A list of missing documents or tangible exhibits should be prepared and each person should be assigned a "to do" list. The lawyer should describe in detail to the client what can be expected both in terms of form and substance. Some thought should be given to a range of settlement figures and the lawyer should candidly discuss the positive and negative aspects of the case with the client. This is the time to learn what the client's expectations are insofar as settlement is concerned. For example, the client needs to understand the limits of recovery and what constitutes recoverable damages – and, more importantly, what does not. The client should be instructed as to what to wear and how to act in the presence of the opposing party and attorney. The lawyer and client should discuss whether it would be in the best interests of the case for the client to actively participate in the opening statement. The parties should familiarize themselves with the depositions and witness statements and be prepared to discuss and/or rebut them at the mediation. The factual basis of each cause of action and defense should be discussed and examined at this time. By the time of the mediation the lawyer should have enough information as a result of discovery and witness interviews that there should be no surprises at the mediation. Remember, one of the measures of a settlement is what is the value of an offer compared to the risk of what might happen at trial. Just as in a trial, presentation is as important as substance. Each attorney and party at a mediation will assess the mettle of their opposition in deciding whether, and for how much, to settle a case. The better prepared the lawyer and client, the more likely there will be a favorable settlement.

Bring Copies Of Important Documents And, If The Situation Merits It, Prepare A Computer-Generated Display

Pictures and documents can be effective settlement tools. There are no rules of evidence in a mediation, so if there is something you think will help the other side understand your position, bring it with you. For example, copies of time cards, pay stubs, canceled checks, bank statements, photographs, contracts, emails, and diagrams can help demonstrate what the other side will be facing at trial if the case does not settle. Copies of relevant statutes and case law — including copies to give to the other side for its candid consideration — are useful tools in assessing risk. Likewise, a financial statement, an insurance policy or a copy of a prior judgment or lien will prove useful in a mediation, even though the same would not ordinarily be admissible at a trial. Cases resolve based upon the information at hand. Documentary proof of a material fact is compelling evidence and gives a party incentive to settle. Each side should bring a copy of its proposed jury instructions. One of the most effective tools at mediation is a recitation of the provable facts along with the instructions to be given to the jury, so the opposing party can compare the two.

Finally, prepare a draft of a settlement contract. Make sure it contains the "boilerplate" you consider important and give a copy to the other attorney(s) prior to the mediation. It should not contain the core terms of a settlement, but if your client or you intends to insist on certain language or terms, e.g. confidentiality, then there is no harm in discussing these matters in advance. Besides, what better signal is there to demonstrate your interest in settling than a draft settlement agreement?

Be Prepared To Discuss The Strong And Weak Points Of Your Case

Mediation is risk analysis. Through the mediator the parties compare their claims and causes of action against probable outcomes at a trial on the merits. This process requires each side to candidly and confidentially review the case — warts and all — with the mediator. The perfect case is rare, and probably not appropriate for mediation. Each case is subject to legal or practical problems that may affect its outcome at trial. Each side has a justification for the way the events that led to the dispute occurred. The mediator should be made aware of not only the problems with the other side's case but the problems with your case as well. You can trust the mediator to keep confidential information confidential. But remember, you are paying the mediator to give you a confidential and realistic assessment of your case. Failure to disclose negative information to the mediator is as serious as the failure of your client to reveal negative information to you.

Make Sure The Client Or Client Representative Has Authority To Settle The Case

There is nothing more frustrating for a mediator or a party than to learn at the end of a day of mediation that the other party representative does not have authority to enter into a settlement. While in some instances this is unavoidable, in most cases it is inexcusable.

The people who are present at the mediation should be the people who have the authority to settle the case. If the plaintiff in a lawsuit is married and wants to discuss the case with the spouse before agreeing to settle, then the spouse should be present for the entire mediation. Likewise, a corporate representative should carry the full authority of the corporation to settle and a partner should have the full authority to bind the partnership if a settlement is reached. An insurance company should send an adjuster who has the dollar authority to settle the case; if the insured has a say as to whether or not a case can settle, the insured needs to be present as well. The reason for having the right people present for the entire mediation is that during the course of the mediation it is not unusual for one or both sides to be exposed to new information that changes their preexisting concept of the case. A non-participant in the mediation will not appreciate the information learned in the same way as an active participant

There is a second reason why it is important for the decision-makers to be present at the mediation. In order to obtain a settlement, it is important that the parties, however begrudgingly, respect each other. The failure of a decision-maker to attend a mediation is a sign of disrespect and seriously impedes the process.

Prepare A Memorandum For The Mediator

A few days prior to the mediation, prepare and send a confidential memorandum to the mediator. The purpose of this memorandum is to acquaint the mediator with your case. If it is appropriate, attach a copy of relevant case law and documents to the memorandum. For example, in a breach of contract case, attach a copy of the contract in issue. In a case that may turn on a matter of law, attach a copy of the case or statute that supports your position. The memorandum should not be more than three pages in length. The memorandum should be marked "Confidential." You should also include in it any information you think might be helpful to the mediator, including problems with your case and problems you know exist with your opposition, such as witness availability, ability to respond in damages, and lack of insurance coverage. The purpose of the memorandum is to give the mediator an overview of the case. Keep in mind that the mediator has no more information than the parties supply.

Prepare An Opening Statement

Most mediators believe that if there is a single thing a party can do to maximize the likelihood of settlement of a dispute, it is in the organization and presentation of the opening statement. The opening statement sets the tone of the mediation, and the outcome of the mediation can depend on the effectiveness of the opening statement.2 Each side should use this opportunity to address the other party directly, since it is likely the only face-to-face meeting held before trial. There are no rules of evidence, so each party is free to discuss any matter felt to be of importance. There are a number of books and treatises available that suggest what should be contained in a good opening statement, and it is beyond the scope of this article to write an extensive "how to" guide. The following ideas may be of some help to you:

• Outline what you expect to show at the trial of the case by identifying the witness and the expected testimony. If you will be introducing an exhibit through a particular witness, show it or describe it at this time.

• Show the damage model you expect to use at trial and the amount of damages that will be proven or challenged.

• If necessary, name the case citations you will be submitting to the court and tell why they are important.

• Keep in mind that the other party will be present and, even though the opposing lawyer may be familiar with what you are going to do at trial, the party is probably hearing it for the first time.

• Speak directly to the other party.

• For defendants, this is the ideal time to express regret or apologize for the event that started the lawsuit.3

• Parties should be prepared to directly address the opposing party.

• Acknowledge the risk of trial and announce that it is your intent to compromise the claim at the mediation.

Bring A Positive Attitude To The Mediation

When you come to the mediation, bring an open mind and a willingness to listen to what the other side has to say. Think of the mediation as a place to resolve a dispute rather than a forum for advocacy of a particular position. I ask each of the parties and attorneys at my mediations to imagine that a thousand-piece jigsaw puzzle is covering the conference room table. The object of the parties is not to see who can get the most pieces of the puzzle on their side of the table, but to see if by working together the pieces can be transformed into a picture.

Conclusion

Mediation is a cooperative problem- solving process in which disputes are settled by agreement. The successful mediation advocate knows that agreements are made by bringing parties together rather than by driving them apart. Settlement, by its very nature, means giving up a right in exchange for gaining finality. Prepare for mediation in the same manner and to the same extent you would prepare for a trial. Listen to what the other side has to say to your client and keep an open mind. Enter the mediation with the attitude that you will work toward compromising the claim in issue. Remember, if you or your client do not like the last offer made in compromise of the dispute, you can always refuse to settle the case and let a judge and jury decide it.

Footnotes

1 Ron Wiesenthal is a graduate of the University of Missouri-Kansas City Law School (J.D. 1972) and the owner of the St. LouisMediationCenter, LLC. He is licensed to practice law in Missouri and Texas, and has been a mediator since 1992.

2 See, for example, E.D. Mo.L. R. 16-6.04.

3 See, for example, Rule 17.06.