The Risk Manager, Summer 2008
Some Advice from an Expert Mediator
Editor’s note: The author of “Preparing You and Your Client for Mediation,” Scott Magers, is a retired Army Brigadier General who served 30 years as an Army lawyer. Upon his retirement he established a mediation practice in San Antonio, Texas. Over the last 13 years he mediated over 1800 cases with a better than 90% closure rate. His article is a clear and to the point guide on representing clients in a mediation.
Selecting the Mediator
Once the decision has been made to participate in a mediation, the attorneys should select a mediator. I understand that in some jurisdictions the judge or other judicial official will appoint the mediator, but the more common practice is for the mediator to be selected by counsel. My assumption in this paper is that counsel will have the opportunity to make the selection. There are several issues involved with the selection.
- What mediator skills do you want?
I suggest the following are the skills you might want in your mediator: empathy, impartiality, positive attitude, competence, confidence, ability to manage conflict, PATIENCE, ability to listen, integrity and honesty, ability to articulate options, judgment, timing of style and tactics, tolerance for stress, and sensitivity to the parties' circumstances.
You might not be able to find a mediator with all of these positive traits, but you would not want to select anyone without most of these skills. In my opinion, you do not want to make your selection based primarily on the mediator's expertise in the subject matter of the dispute. Although it is helpful that the mediator have a general knowledge of the law concerning the dispute, keep in mind that you are hiring the mediator for skills and experience as a mediator to help the parties resolve the dispute. You can hire separately an expert to help analyze the strength of your position and of course you, the attorney, are responsible for providing the legal advice to your client.
- Do you want your mediator to be aggressive or more passive?
Each mediator has his or her own mediation style. The number one complaint I hear about mediators is that they are so passive that they only exchanged the demands and offers without providing any evaluation to either side of the risks and costs of the litigation. You may, for good reason, only want that limited contribution from your mediator, but I suggest that the dispute will more likely be resolved in mediation if the mediator plays a more aggressive role in helping both sides understand those risks and costs which will have a significant impact on each sides' position. The mediator who plays the "agent of reality" will, in my opinion, make the greater contribution.
- Should you agree to a mediator opposing counsel recommends?
Because trust is so important in how well you work with the mediator, it is usually better if you have some knowledge of or experience with the individual. However, often you do not know the mediator suggested. If that is the case, you should talk to the mediator and seek biographical information that will assist you in your decision. The recommendation of the mediator by other lawyers you trust is important, but the acceptance of the recommendation by opposing counsel might be a positive step in showing that you trust opposing counseland want them to know that you want to work with them in making mediation a success. Certainly I would not reject their suggestion of a mediator without further inquiry.
Mediations are usually conducted at one of the offices of opposing counsel or a neutral site such as rooms at the courthouse or other location with conference rooms. My experience is that the location is of less importance than some might imagine. As long as the location is comfortable and provides private caucus rooms, parties will resolve their disputes if it is in their interest to do so. If you conduct a mediation in your office you must be careful that you do not let other office matters interfere with your ability to concentrate on the mediation being conducted.
There is no hard and fast rule for when to mediate, but it is difficult to reach a settlement if you do not know the strengths and weaknesses of your case. How extensive should be the discovery prior to mediation depends on the complexity of the case and the availability of reliable evidence gained through other means. Certainly you must have knowledge of all controlling facts and hopefully you will not be in a position that you will be surprised by information that might be revealed by the opposition at the mediation. On the other hand, discovery is expensive so it might be appropriate to mediate prior to incurring these expenses with the hope of resolving cases where the parties are not expected to be wide apart in their analysis of the case. Of course parties often mediate by a certain date because a judge has so ordered.
Counsel's preparation for mediation begins with the initial preparationfor client representation. When first interviewing clients you will determine the clients' interests, legal and factual basis of their position, and consequently the strength of their case. This understanding of the case will allow you to prepare for the mediation as you would for a trial. At the mediation, you and your clients are trying to persuade opposing counsel and client of the merits of your position, as you would try to persuade the judge or jury at a trial. Do not go to the mediation without a thorough understanding of the facts and law that impact on your chance at winning at trial. Not only should you know what your client wants from the mediation, you should try to get an understanding of the interests of the opposing party so you will be in a better position to propose offers or demands that might meet the interests of both parties.
It is also important to provide the mediator with a confidential mediation memorandum prior to the mediation, which gives the mediator an understanding of the law, and facts that will be at issue during the mediation. I also find it helpful for counsel to inform me prior to the mediation of particular issues concerning his or her client that I need to consider during the negotiations.
An important part of counsel's preparation for mediation is to ensure that the client has someone in authority to settle the case at the mediation. Although often the expectation for settlement at mediation is low, experience shows that success improves when decisions makers are present. Being available by phone may be a convenience for one party or the other, but without their physical presence in the mediation process they are put at a disadvantage in evaluating new risks and facts discovered at the mediation. Even worse is saying the individual with authority is at the mediation when in fact they are not; this often becomes an issue of bad faith in the eyes of the opposition. My experience convinces me that it is difficult to convey the dynamics of the mediation over the phone.
The mediation process and its advantages should be explained to the client. This includes an explanation that both sides will be asked by the mediator to consider the risks and costs of further litigation. If you have not done so prior to the decision to mediate, the client must be informed of the best and worst alternatives to a negotiated agreement (BATNA and WATNA). Prior to mediation is the best time to make sure your client does not have an unrealistic expectation of what his case is worth. Even when your initial evaluation of the case was optimistic, if subsequent information has caused you to change your view, the client should be so informed. Do not wait for opposing counsel in the mediation to surprise your client with evidence or legal argument that you have not previously discussed. It is also my opinion that you should inform your client of the monetary costs that will be incurred through trial if agreement is not reached in mediation. I often find I have to explain to the client that because of these costs, the party is better off to accept a lesser amount at mediation than that which could be expected from a favorable verdict at trial. Most clients understand the concept of strengths and weaknesses and pluses and minuses, but these issues are best discussed the first time prior to mediation.
The client should be told that he will be given the opportunity to explain his position to the opposing party during the opening session of the mediation. He should be prepared for making this statement as you would coach or assist him in preparing for testimony at trial. I recommend you remind him to keep his anger or emotion under control although the ability to vent his feelings may be necessary to gain resolution of the dispute. Finally, you should agree with your client over negotiation tactics or the mediation will likely fail.