THE NEOPHYTE LAWYER
DAY 134: REFLECTIONS ON MEDIATION
Earlier this week, I took the lead in my first mediation session. Without going into details (confidentiality and all that), the case is a wrongful termination case before the Utah Antidiscrimination and Labor Division of the Utah Labor Commission. My sister and I represented the plaintiff.
I’ve taken a few negotiation classes in the course of my graduate school career. I’ve drafted a few mediation briefs for other cases. And I sat in on a couple of mediations in the past. But this was the first time that I was an active participant in the mediation itself.
Based on this experience, here are some impressions for fellow neophytes. Some of them might be more obvious than others, but hopefully they will help you prepare for your next mediation.
1. Preparation, Preparation, Preparation – This might seem like a no-brainer, but as with so many aspects of life, preparation is the key to a successful process. Know the facts of the case. Know which of your arguments are strong and which are weak. Know what elements you have to prove to make your case. In addition, try to get a sense of the value of the case. Do as much research as you can on settlements and verdicts in similar cases. What are the ranges of the verdicts and settlements? How many verdicts went for the plaintiff? How many went for the defense? When you get into the sessions with the mediator, you want to spend as much time as possible discussing the case, rather than making the mediator wait while you look up information in the binder.
2. Prepare Your Client – Even if you do mediations all the time (our firm had two this week), remember that your client probably doesn’t. He or she is probably very nervous about this whole thing. You need to prepare them about such things as:
— The Process: What is going to happen in the mediation, and what role they are expected to play? There are a number of videos available that explain the process. If you don’t have one, get one and use it.
— Statements by the Other Side: The client needs to be aware that during the course of the opening statements, the other side is probably going to say things that are hurtful, inaccurate, or both. It is important for them not to react to these statements. Make sure the client has a pad of paper and a pen. Suggest that they focus on keeping notes of the session, rather than reacting to the other side.
— “Low Ball” or “High Ball” Offers: Depending on which side you are on, your client has to be prepared for the opening offers. Plaintiffs will make high initial offers. Defendants will make low initial offers. That’s the nature of the beast. If both sides are bargaining in good faith, those figures aren’t the final positions of the parties. Your client needs to know this, so that he or she doesn’t get so offended that they call off the mediation.
— Unrealistic Expectations: This may be the hardest part of client preparation. Plaintiffs may have the opinion that their case is worth a lot more than it really is. Defendants may think that the case is worth a lot less than it really is. Although your role is to be your client’s advocate, in order to fulfill that role, you need to be objective. And you must prepare your client to face the reality of the situation. That’s where the advance preparation comes into play. Show your client the research that you did on similar cases. Give them a realistic evaluation of where the settlement range is likely to be.
3. Uses of Mediation – Mediation can be a very useful litigation tool. Of course, its most important use is to provide an early and cost-effective settlement to the dispute. But even a failed mediation has its uses. Some of these other benefits of mediation include:
— Feeling Out the Other Side: Sometimes, you really don’t know how the other side evaluates the case. And while they will rarely, if ever, come flat out and tell you what their bottom line is, mediation can help you figure out where they are coming from. Once you get an idea of how they see things, you can begin to figure out the broad parameters of the settlement range.
— Objective Evaluation of Your Case: Sometimes, despite your best efforts, it is difficult to avoid getting caught up in the emotion of your client’s position. Having a neutral mediator look at both sides of the case and providing a frank evaluation of the strengths and weaknesses of the case can be very useful in figuring out what you still need to do if the mediation fails.
— Creative Solutions: Another benefit of mediation (or other ADR processes) is that the settlement need not be solely money. Anything is on the table. The ultimate goal is to make all of the parties happy. Many times, that can be accomplished by non-monetary means: a letter of recommendation, a written apology, assistance with filing Social Security Disability or other types of claims, etc. A really good mediation encourages all the participants to come up with creative solutions to the problem.
— Reality Check for the Client: Again, even after all of your preparation, the client still has unrealistic expectations about the case. The mediator can help you bring the client around. This is a delicate and potentially dangerous exercise, however. In some situations, the client will come away from the experience with the impression that the mediator was not, in fact neutral. If the client believes that the mediator favored the other side, and was being unfair, they might dig their heels in and refuse to even consider future settlement offers. Part of your job at this point is to convince the client that the mediator is being just as hard-nosed with the other side. The mediator’s job is to help both sides come to an agreement, if possible. That requires the mediator to be completely honest with both sides.
4. The Presentation – For those unfamiliar with the mediation process, the general practice is that initially, both parties meet together. Each side gives an opening presentation, after which the two sides go into separate rooms. The mediator then engages in “shuttle diplomacy,” going from room to room. Based on my performance, here are some suggestions for this initial presentation:
— Speak Up: I don’t mean that you should be shouting from the rafters, but make sure that everyone in the room can hear you clearly. Also, don’t drop off the end of your sentences (this is a problem I have).
— Make Eye Contact: Don’t just read from a prepared script, with your head buried in your notes. This is another place where your initial preparation pays dividends. The more you commit the case to memory, the less you will need your notes. Look the mediator and the other parties in the eye and tell your story.
— Don’t Forget the Narrative: Remember that you are trying to convince the mediator and the other side. Tell your client’s story. Be compelling (without straying from the facts or being overly melodramatic). The more sympathetic your client’s story appears, the better off you’ll be.
— Be Confident, But Not Confrontational: At the same time that you being compelling, remember not to get in the other side’s face about it. Successful mediation requires calm heads. It’s also part of the “don’t be the asshole” strategy I discussed in my earlier post about the Utah Standards of Professionalism and Civility.
— Remember to Bring Your Business Cards! This is more of a personal reminder than anything else. Normally, I have a business card holder with a bunch of cards in my shirt pocket. I also usually have a number of cards in my briefcase. When I got to the mediation, I found that I had forgotten to put the card holder in my pocket. And I didn’t bring my briefcase. Fortunately, to the best of my knowledge, nobody has ever lost a case because they forgot to bring their business cards to a mediation. It was still a little embarrassing, however.
5. Get the Mediator on Your Side – The mediator can be your best ally in the mediation process. But this takes some work on your side. Drafting a solid mediation brief is a good first step, especially if you provide a realistic evaluation of the strengths and weaknesses of your case. Be just as realistic in your sessions with the mediator. Let the mediator know that you and your client are there in good faith. Be friendly in your conversations. Ask for his or her opinion about the case, the probable settlement range, and how you should proceed. Most importantly, listen to what the mediator says. While the mediator can’t tell you things disclosed by the other side in confidence, if you listen closely, you can pick up cues about what the other side wants or is willing to accept to settle the case.
Ultimately, we did not come to a settlement in our mediation. But that doesn’t mean the whole experience was a failure. We got a feel for the strengths of our case, and the things we need to work on. We began a dialogue with the lawyers on the other side; with a little luck, we might still be able to come to an agreeable settlement. And the Neophyte Lawyer learned some valuable lessons about his strengths and weaknesses. Some things went well, some things could be improved upon. That’s why we’re called “practicing” attorneys. We haven’t gotten it all down pat just yet.