STRATEGIZING FOR EFFECTIVE MEDIATION

Ellen GodbeyCarson & Lou Chang

  1. Goals
  • Achieving satisfactory, early resolution which fits the needs and interests of clients and parties
  • Achieving results that meet issues and needs which cannot be obtained through available legal processes
  • Preserving relationships, confidentiality
  • Satisfying special relief needs
  • Obtaining better net results for your client
  • Getting rid of the dog cases
  • Identifying appropriate timing for mediation (Ripeness). Obtaining and creating productive moment for resolution
  1. Why Mediation Fails and What You Can Do To Prevent That
  • Lack of participation of real decision-makers or driving forces
  • Lack of critical information to permit sound decision making
  • Not all parties are at the same stage of "ripeness" for decision making
  • Missing critical necessary party (insurer, guarantor, subcontractor, etc.) and needed degree of decision making authority
  • Underestimating the potential and possibilities presented through mediated negotiations
  1. Selecting the Mediator You Want and Need
  • Determine reasons why direct negotiations have not been productive or successful
  • Potential impact and effectiveness with your client and with other parties/counsel. Ability to earn and create trust and rapport
  • Identify and consider style (facilitative, evaluative, transformative/narrow or broadly focused)
  • Obtain disclosures. Considerations regarding use of mediator with past or frequent service with involved party, carrier or advocate
  • Proactive
  • Demonstrated record of success
  • Willingness to work hard to achieve resolution
  • Skill and ability to manage productive negotiations
  • Source of creative solutions
  • Training
  • Ethics and handling of confidentiality requirements. Importance of understanding degrees of confidentiality and extent to which you can trust the mediator with secret data or sensitive information or strategy
  • Communications with Court and others
  • Reputation
  • Subject matter expertise, referrals, Google checks
  • Interview potential mediator
  1. Exchanging Important Information
  • Use and enlist mediator’s assistance to arrange effective pre-mediation productive information exchange
  • Third-party assistance on documents/subpoenas/appointing arbitrator or decision makers
  • Substantive interviews of critical witnesses without depositions
  • Managing productive expert information exchange, tests, reports, round tables with decision makers
  • Focus discussion on critical issues (factual, legal, non-legal)
  1. Strategic Considerations
  • Before or without extensive formal discovery process. Goal is to provide sufficient information to permit good decision-making. Even before the filing of a case might be appropriate
  • Developing strategies for mediation. Control disclosures of information
  • Using mediator to obtain and to communicate important or strategic information
  • Using mediator to communicate proposals and address sensitive issues
  • The mediator’s proposal and reactive devaluation
  • Provide input to mediator before proposal is communicated
  • Have understanding of how a mediator’s proposal will be handled
  • Is proposal within applicable limits? If not, what options exist?
  • Hypothetical bargaining, the “what if…” discussion
  • Arming the mediator for effectiveness
  • Determine what information is best presented by a party or representative and what would best be communicated by or through the mediator
  • Timing of disclosures and how much
  • Site visit, key witnesses, key evidence
  • Identify anticipated problems to mediator
  • Opening statement. Mistake to forego opening? Opportunity to speak to opposing party and evaluate their strength as a witness. Set desired tone appropriate to case. Firmness but open to resolution. Use demonstrative exhibits, power-points strategically for desired effect

  • Create best environment possible for resolution. Choose strategies –Power, positional or interest-based or a combination thereof. Be guided by what will be productive and effective. Consider tone and creation of conducive spirit for mediation. Decide if client should speak. Understanding the drivers of the dispute, emotions, reputation, lack of facts, etc.
  • Cooperation, collaboration with mediator in designing process and strategies.
  • Design format of the mediation process to maximize success.
  • Meetings of principals, experts, logical subgroups
  • Meetings of principals or advocates only
  • Issue focused expert roundtable
  • Management of critical legal issues, early dispositive motions, private evaluations, untested novel legal issues
  • Planning the process to fit the fuss, root of success is in the preparation. Design needed or helpful pre-mediation steps
  • Help mediator shape or change the paradigm of thinking to promote resolution
  • Determine if case and negotiations would be more productive with the involvement or input from experts. Provide for productive involvement or input from experts without expensive discovery
  • Knowing your best alternatives to a negotiated agreement for your client as well as the other parties involved
  • Gain clarity as to who needs to actively participate. Lack of active participation of necessary decision makers is one of the primary reasons mediations fail
  • Motivators for resolution,cost benefit analysis, tangible and intangible values.
  • Explore hidden interests, options and issues. Business, personal, non-legal issues that may give rise to creative options.
  • Be open to creative solutions that may meet needs and which could not be achieved through litigation
  1. Pre-mediation Statement
  • Public and shared statement setting forth facts and issues
  • Private or confidential for the mediator only mediation statement setting forth controlled information, information regarding relationships between parties, history, potentials for ongoing relationships, ideas and opportunities for “win win” outcomes, creating value and ideas for solutions.
  • Content of a good mediation statement
  • How dispute arose?
  • Who are the important players?
  • Key factual and legal issues. Areas of agreement/disagreement.
  • Are important non-legal concerns a factor?
  • What barriers have made negotiations difficult?
  • Legal posture of case
  • History of offers/counteroffers made, if any
  • Is there any critical missing information?
  • Are interest based, “win-win “ opportunities available?
  • Key portions of critical documents or evidence mediator should know.
  1. Ethical Issues
  • Confidentiality. Multiple levels and aspects of confidentiality (party, Court, public)
  • Rule 408: evidentiary rule/limitations
  • Confidentiality or mediation process and actions vis-a-vis third parties
  • Confidentiality of information provided to mediator which is not to be disclosed by the mediator to anyone without subsequent permission
  • Considerations for Court- appointed mediator with authority to order participation, impose sanction and report to the Court
  • Be clear with the mediator as to information to be kept confidential
  • Strategic choices with regard to timing and use of confidential information
  • Communications with and to the Court. Use and engagement of the power of the Court
  • Rule 1.6 - Confidentiality and the duty to disclose
  • Rule 1.4 - Communication - assisting the client in informed decision-making
  • Rule 2.1 - Advisor, "render candid advice", advise of ADR options
  • Rule 4.1 - Truthfulness in statements to others
  • Be clear on the limits of zealous representation, truthfulness of representations and honesty in assessment of cases vis-a-vis the client, the mediator and opposing counsel.
  1. Working With an Unrealistic Client
  • Educating the client.
  • Understanding and identifying needs and interests
  • Provide productive opportunity for client to listen and be heard
  • Mediator evaluation- specific disputed legal issues
  • Desired specificity
  • Valuation evaluation can impact negotiations in positive or negative fashion. Need to be selective and strategic.
  • Grey Sheets data/ranges
  • Protecting the advocate as champion
  • Mediator reality testing
  • Transforming risks/achieving interests

  • Managing emotional aspects
  • Venting-dialogue-cause-appropriate response
  • Grieving & reactions to loss, acknowledgement, apologies, forgiveness, acceptance
  1. Working with an Unrealistic Advocate
  • Identify the cause(s)
  • Lack of information
  • Lack of preparation
  • Uncertain legal issue
  • Lack of precedents
  • Emotional component
  • Conflicted interests
  • Positional tactics leading to impasse
  • Managing unreasonable expectations
  • Grey sheets data/ranges
  • Negotiation coaching
  • Cost benefit analysis
  • Risk analysis
  • Bluster and subterfuge
  • Management of opposing counsel, managing incompetence, unreasonable or bad advice, mis-evaluations and client control problems
  • Working with hold out party or insurer. Bad faith considerations. Settling around hold out party.
  1. Securing the Settlement Agreement
  • Get it done while its hot
  • Recite intention of parties to enter a binding agreement. Example:

We intend that this memorandum shall bind each of us . . .. [W]hile we understand that formal documents will be prepared to facilitate the detail of our agreement contained here, we do not intend our settlement agreement to be dependent upon our agreement as to any such detail, and agree that our agreements contained herein are fully enforceable against us. . . . [T]he dispute has been settled by the agreements contained here and the settlement is not conditioned upon any further agreement.

  • Mini arbitration provision for a Court or designated arbitrator to resolve language issues
  • Convert mediation to arbitration for interpretation and enforcement concerns
  • Bring and circulate drafts of proposed settlement agreements where appropriate

  1. Best Practices
  • Meet with mediator early to discuss and design appropriate process, timing, ground rules and protocols
  • Clarify levels and degrees of confidentiality. Confirm mediator’s commitment to confidentiality
  • Insist on active involvement of all decision makers/stakeholders
  • Identify, gather, prepare the data and information needed to maximize potential for a productive and successful negotiation
  • Prepare your client on the
  • Process
  • Client’s role and interaction with the mediator (in private and joint meetings) and other parties
  • Confidentiality rules in play. Degree to which information will be provided to mediator/other parties
  • Availability of private meetings
  • Prepare a negotiation strategy and coordinate & enlist mediator’s assistance to execute the strategy. Work with the mediator to design and shape a mediation process that will work best for your case and circumstances

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