Mediation Tip: Primer for Preparation for Mediation
As I am getting ready to speak at a bar program on preparation for mediation, I realized It has been awhile since I wrote about the topic. Thus, here are my proposed tips for preparation for a successful mediation.
(1) Lawyers, meet with your client in advance of the mediation. This is for several reasons including learning about the case, preparing the client for the process, and managing expectations.
(A) The lawyer needs to drill down with the client everything about the case and the other sides' allegations. This is necessary to prepare for the questions that will be asked by the mediator, as well as for preparation of a brief in advance. Also, clients often do not fully understand what a mediation is about, so they look to their lawyer to help explain the process. From the mediator's perspective, we also hope you are preparing the client for realistic expectations of what can happen at mediation; however we also understand the lawyer's corresponding need to demonstrate to the client that you are their advocate, on their side.
(B) If the parties have already been through a court or agency-mandated settlement conference, there are differences from mediation that should be explained to the client. The Judge or Judge pro tem divides time between 2 or 3 other cases and usually has an early ending point. The Judge has the power to order parties to do things such as bring a carrier or all decision makers to Court. In mediation, there is usually more time available for the case, and the case is the only one the mediator is focusing on at that time. However, the mediator does not have a Judge's power to "order" people to act. Thus, in preparing for mediation, the lawyers will need to be proactive and think of things that they need to ensure a good, productive mediation, such as asking the mediator to do all that can be done to ensure that the other side brings their client, and any/all persons who could influence the decision-making process at the mediation. Sometimes there are multiple owners of a company, or a board of directors, or a spouse or other family member who will have the party's ear during mediation. Where possible, it is best to have those persons present at the mediation (yes, even if they will be difficult. If they are going to be difficult either way, at least a dialogue can be had face to face if they are present at the mediation.) Everyone needs to think ahead to the end of the day when the case has settled. Will everyone be there whose signature is needed for an agreement? If not, what arrangements are made to obtain that signature, however late the mediation goes?
(C) Contemplate ahead of time what documents, testimony, or other evidence you need ahead of time? Ask the other side ahead of time for information, or schedule depositions. If you are unable to obtain what you need, elicit help from the mediator. (Caveat in that the mediator cannot serve as a "discovery referee", but can assist in trying to get cooperation among the parties for exchanges of information important for the mediation process). In an employment case, usually the plaintiff needs defendant's evidence supporting its decisions, actions, and defenses, and defendant needs plaintiff's evidence supporting their claims and damages. In an accident or medical malpractice case, the medical records and any expert reports are needed. In a breach of contract case, usually the operative agreements have been or should be exchanged, and in all of these cases, emails or other electronic evidence might be needed. (Caveat: The purpose of mediation is to settle and bring closure to the case, not have it turn into mini-litigation. Hence, all sides should be focusing on what is essential for their decision at mediation, not every piece of evidence they want to have).
(D) Everyone should consider and discuss sharing of briefs. Particularly in early (pre-lit or early-lit) cases, the parties do not know much about each sides' case other than what their client told them, and what the lawyers have spelled out in demand letters, responsive letters, or complaints. I believe it is helpful to share briefs, if nothing more than to convey information and save the extra time consumed by the "shock factor" at mediation; further, I believe it helps to start engendering trust among the lawyers. The parties may always prepare a second, "Confidential" brief which will be sent solely to the Mediator.
(E) Discuss numbers, including anticipation of the other sides' view and your own side's view. Look at what actually exists and what does not. In a couple recent wage and hour cases, plaintiffs included non-economic damages, or extra penalties beyond those allowable at law. The problem then was their client's expectations. In some other cases, defense lawyers had overly "sold" a low damage estimate, and that they would win the case. As facts unfolded at mediation, the parties had difficulty accepting their risks or that they might have to pay more than they were initially told. Thus it does help to explain that much information gets learned at mediations, and some of that may alter the merit and damage analysis.
(2) Prepare for the mediation itself:
(A) The mediation process belongs to the parties, their lawyers and representatives, with facilitation and guidance by the mediator. As such it is important for the parties to be present at mediation. Sometimes, a plaintiff or a defendant decides not to show up. However it is advisable to appear for this main reason: The other side will construe the party's absence as a sign that he/she does not take the case seriously or does not think it is important, and hence, is not there to seriously resolve the case. Two examples demonstrate the negative repercussions of not appearing: (i) In one case the plaintiff had just gotten a new job out of state and did not want to jeopardize it by taking 2 days off to travel and appear at mediation. So his lawyer set up his participation via FaceTime through an iPad. One problem: He forgot to notify defendants, who upon learning of it at mediation became angry and threatened to walk out of the mediation. They stayed, but at every turn, used the plaintiff's absence as justification for their negative assessment of the plaintiff's case or for lowering damages, despite being told that the plaintiff was very active in the case every time I was in the room (it was an odd thing at first to see a "head" planted on the table via iPad). When we settled that evening, the "absent" plaintiff promptly reviewed the emailed agreement, signed and sent it back. (ii) In another recent case, some of the named defendants did not show, because the carrier held the pursestrings and would be calling the shots. Plaintiff felt less invested in the process because of perception that defendants were not committed to settlement. We worked through the negative perceptions, settled the case, and again, the absent party cooperated with signing the documents. However it has occurred that the absent party caused delay in finalizing the settlement. To avoid the drain on time and emotions, it is still better for everyone to be present at the mediation, in order to be taken seriously and lend credibility to the negotiations. If that cannot happen, at least get approval from opposing counsel, and ensure that the party is available in real time, regardless of distance and time zone, for dialogue & to sign any settlement agreement, keeping their cell phone handy.
(B) It is also necessary for the parties to speak at a mediation, whether it's just to the mediator, or to others at the mediation. In one recent mediation, the plaintiff lawyer repeatedly stepped in to respond for the client. I explained the importance of my getting to know his client in order to better convey his position to the other side. The lawyer explained his concern that his client was not able to articulate his claims well, and he later told me privately that he had not prepared his client for examination at the mediation. He was concerned that a negative inference could be drawn from his client's "scattered" responses. I reassured him that it was better for his client to tell his story, perhaps for some catharsis, but also so I could get to know his client as a "human"; also, it is expected that at times they won't have the best answers. Furthermore, any "mis-statements" by the client would "stay in their room" cloaked by the confidentiality agreement. The client relaxed, was able to speak, (the lawyer still filled in some blanks) and the case resolved, with everyone feeling that they got a full chance to participate in their mediation. The point here is not to "coach" the client, nor to elicit canned responses to questions, but rather, to inform the client that they will likely want to, and/or will be asked to speak during the mediation at least with the mediator. Suggest ways for the client to relax, this is not a deposition, the mediator is not the judge who will decide the case, and that the mediator is looking for the client to be "himself/herself", not to try to impress. On the other hand, lawyers should always feel comfortable stepping in if you feel the need to speak with your client before the client answers a mediator's question. It could be that the question strays into a delicate area, or a new area. Such a request will and should be honored.
(C) In preparing for the hearing, the client should be educated about the process. The lawyer should find out ahead of time if the mediator holds joint sessions or not, and then you can prepare your client accordingly. This client preparation should also include educating on the strengths and weaknesses of their case, damages and how those may play out at mediation, as well as a discussion of the other sides' positions. The client may become defensive upon hearing anything not in keeping with their own view. Previewing the process may help to alleviate that. Clients may feel the need to be "right", but the mediation is not about "winning". Most everyone experiences being "right" and "wrong" at different points in the process.
(3) Briefs: it is helpful in most cases to have a “brief”- but, make sure that it adds value. Huffing, puffing & rhetoric for several pages about how bad the other side is does not provide value. Providing a chronology of events, discussing the alleged wrongful acts that led to this dispute, enumerating all damages and prior settlement talks, is very helpful. If the law is complex or perhaps not the area of specialty of the mediator, then by all means include the salient law affecting the heart of the case.
(4) I regularly schedule pre-mediation calls, as do some other mediators. Be open and available for such a call, and if your mediator does not set one up, do reach out to the mediator to give them an overview of nuances, obstacles, language barriers, cultural issues, etc. in the case, or about the clients, or anything else that will help the mediator to prepare for the mediation.
(5) Look at comparable verdicts for similar cases (and not just the ones that favor your position). Try to look at a representative sampling, of course also pull those that you believe will help in your case. This will help with your client's expectations, as well as to persuade at mediation.
(6) Clients-what should you be doing to prepare?
(A) Gathering documents, notes and other evidence; putting together a list of potential witnesses, chronology or any other tool to help guide the lawyer or the mediator.
(B) Ask enough questions so you feel comfortable with the process Most plaintiffs are new to litigation and mediation. Often corporate defendants are savvy about the litigation and mediation process, but many are not, or may not be about this type of case. (For example, a construction company is familiar with workers compensation and personal injury claims, but may not be familiar with an employment tort or wage and hour claim.) If this is a different type of scenario than one you have attended, be open to learning about the process and be available to attend a preparatory meeting with your lawyer or representative, armed with questions.
(C) Research the judge, if you have a court case, and the mediators being considered by the lawyers. (Check websites, google or other search engines) The lawyers usually have networks they use to find out other people's experiences as well.
(D) Ask questions of your lawyer about what to expect and what is needed to prepare for mediation; Prepare and bring chronologies or any other tools to help guide counsel or the mediator.
(E) While it is good to set ‘goals” for mediation, try not to draw finite “lines in the sand”, e.g. come to mediation with at least a “somewhat” open mind. Everyone usually learns something about their case that they did not know, often something which could change your perspective of the case or open eyes to risk factors. Do not become enamored with what your (non-lawyer) neighbor, brother or friend says about your case. They may easily steer you wrong; remember they don't have to face the consequences of going through litigation and discovery, and trial.
(F) Think of what you want/need to achieve from the mediation process; Discuss that with the attorney to analyze ways to achieve your goals; Consider intangibles that may be helpful and do-able.
(G) Mediations generally begin with the plaintiff making an opening "demand", giving a number they would take for settlement. This number will have "room" built into it, to allow for the larger moves plaintiffs generally need to make. Plaintiffs often want everything that they have lost, while defendants generally feel they do not owe anything; Sometimes a defendant will want plaintiff to pay them, for their damages or for a loan they made to the plaintiff during employment. Understand that usually both sides are disappointed in the others' numbers. Remember that you will not generally end at the number that you have sought.
(H) Mediation is a “process” with fluidity. Each side's end picture may not match the beginning picture. Visualize the case being done, over and settled, and how your life will be better if it is. This is an overview, as there are countless numbers of issues that come up in mediation. Defendant may possess secret video recordings of a plaintiff claiming disabilities; Plaintiff may possess an audiotape of a meeting or call (which calls into questions legality at the same time it may be useful for impeaching a party). Either or both parties may have signed witness statements. Social media may well come into play. Evidence of parties' past criminal or medical history may come in. No one can anticipate everything, but do as much preparation as you can, and above all else, remain optimistic and open to the process and what it may bring.