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Source/Author/Copyright:Sylvia Mayer, Mayer on Mediation (http://smayerlaw.com/category/mayer-on-mediation)
In the world of civil litigation, mediation falls in the same category as death and taxes – it is a certainty. While every case is different, below are some “one size fits all” practical tips for preparing for mediation based on over 20 years of experience.
Be Prepared. You wouldn’t walk in to a courtroom to try a case without any preparation, so don’t walk in to a mediation without any preparation. At a minimum, educate your client. Clients need to understand what mediation is, why they are attending the mediation, and what they can expect in a mediation. As part of this, clients should also understand that mediation is about compromise, whereas trial is about winning. While the mediator may address this important distinction, it is most effective if clients hear it from their counsel pre-mediation and begin to consider what a compromise might entail.
Use Your Mediator. Mediators are there to serve. They want to help the parties reach the best possible settlement for their case. Use this to your advantage. A good mediator wants you to. Is there a concern for the safety of your client? Tell your mediator, so she can take appropriate precautions. Have a difficult client or a client with unrealistic expectations? Tell the mediator, so he can help you with your client. Have compelling facts, but bad law? Or bad facts, but compelling law? Tell the mediator, so she can help you in the mediation. While the mediator is impartial, it is his or her role to facilitate a settlement. Mediators are there to serve, so use your mediator.
Know the Business Implications. For business disputes, preparation includes exploring the business concerns underlying the dispute and any ramifications of a settlement or judgment (whether favorable or adverse). Is there a precedent issue? Are there public relations concerns? Is there an ongoing relationship between the parties (or would one party like there to be) to consider? Are there competition issues or quality control issues beyond the litigation, but which impact a party’s ability to settle? Understanding the business implications enables parties to explore more creative settlement options, as well as to identify those options that would be wholly unacceptable.
Be Candid. The mediator is a third party neutral responsible for the process, but the parties are responsible for the outcome. Be candid with your mediator about prior settlement talks, actual or perceived barriers to resolution, business concerns and considerations, and whether there is available insurance coverage. Uncomfortable with being candid in writing? Call the mediator to discuss. The better informed the mediator is, the better job the mediator can do. Failure to disclose information to the mediator may impede the mediator’s effectiveness and result in wasted time.
Use the Mediation. There are hidden benefits to participating in mediation even if the case does not settle. Mediation affords each party an opportunity to test their theory of the case and get a free look at the other side’s theory of the case. It also allows the parties to preview issues that may arise at trial. In addition, if the party attending will also be a witness, then the joint session may be an opportunity to gauge the credibility and caliber of the witness. So use the mediation. If your case doesn’t settle, you may still benefit from the process.
Agree to Disagree. At trial, each party is trying to convince the judge or jury that their version of the facts is the truth and that they should win. At mediation, each party should share their version of the facts and listen to the other side’s version. While trial is about determining what happened and who wins or loses, mediation is about agreeing to disagree on the facts and developing a mutually beneficial compromise. The mediator’s job is to actively listen to each side and then bridge the differences to reach settlement.
Be Prepared to Compromise. Mediation allows parties to control the outcome, whereas trial is a gamble resulting in a winner and a loser. In order for mediation to be successful, however, all parties must be prepared to compromise. In a settlement, each party will get less than they would get if they won at trial, but more than they would get if they lost at trial. Settlement falls somewhere in between each side’s “win.” Thus, when preparing for mediation, parties should be preparing to compromise.
Consider the Nonmonetary. Before the mediation begins, parties should consider what they have to offer (or what they need) that is not monetary. For example, in many cases, a powerful nonmonetary contribution can be a sincere apology. In an employment dispute, common forms of nonmonetary consideration are letters of recommendation or outplacement services. In a business dispute, nonmonetary consideration may come in the form of referrals or introductions or an agreement to continue doing business together. In a discrimination or harassment dispute, nonmonetary consideration may include training or a public apology. Be creative. And be open. Sometimes it is the nonmonetary aspects that bridge the parties to settlement.
Know Thy Range. Most clients can easily explain what a win or a loss looks like to them, but they may struggle to identify a realistic settlement range. In order to ascertain a settlement range, parties should consider the strengths and weaknesses of their case, the cost of continuing litigation versus settling, the time value of money, the enforceability of any judgment, the likelihood of success at trial (based on the merits and on the uncertainty of trial), and the intangible drain of litigation (including lost productivity and impact on reputation). While this assessment should be undertaken pre-mediation, parties should remain flexible and continually reassess throughout the mediation.
Mediation is designed to be valuable for all parties to the dispute. These tips may help parties maximize the value of their mediation experience.
Oct/Nov 2014