THE MEDIATION PROCESS An Advocate’s Model for Mediating
From the perspective of a mediator, how parties should prepare for a mediation. I discuss how to prepare for a mediation and how to present at a mediation, so that you mediate the right cases at the right time in the right way. The best advocates who have appeared before me follow these steps.
PREPARING, PART ONESTEP 1
Make sure the case is right for a mediation.
A case is suitable for mediation if: 1. The parties wish to keep control over the outcome; 2. Trial exposes the parties to unacceptable risks; 3. A trial would be too expensive, complicated, and/or time-consuming given the potential reward; 4. The parties seek a final resolution, rather than a delayed, appealable decision; 5. The case involves confidential or embarrassing information; 6. The case involves emotional issues appropriate for a setting more informal than a courtroom; and/or 7. The matter is not in suit, is not likely to be put in suit, but involves a disagreement that requires a neutral person to help the disputants reach a mutually agreeable solution.
Make sure the case is ready for mediation.
A case is ready for mediation when the parties have the information necessary for them to accurately evaluate and pursue the case. This includes the material facts, relevant law, and necessary expert opinions.
Get your client and opponent to agree to a mediation. Mutually agree upon a great mediator.
A great mediator need not have subject matter expertise, since he is not deciding the case. Instead, he should have the following qualities 1. He is Prepared; 2. He is Self-Aware; 3. He Follows a Process; 4. He Listens; 5. He is Objective; 6. He is Credible; 7. He is Creative; 8. He is Persistent; 9. He Guides the Parties to Their Solution.
Make sure your mediator follows a process! Many lawyers think they can be mediators because they are advocates. This is not so. The roles of mediator and advocate are very different. Although a lawyer can be skilled at both, being skilled at one does not make her skilled at the other.
Contact the mediator; agree upon the fee; select a date; and get, review, sign, and return the Mediation Agreement.
Find out the mediator's expectations. A great mediator will have a Mediation Agreement setting forth these expectations.
Outline your case. Identify: 1. The parties; 2. The claims; 3. The elements of each claim; 4. The material facts and the source of those facts; 5. The strengths and weaknesses of both sides.
Outline your opponent*s case and your rebuttal to your opponent*s case.
Make sure you have all necessary information (facts, expert opinions, and the law) to present your case.
Determine your BATNA - your Best Alternative to a Negotiated Agreement. In other words, if you don*t resolve the dispute at the mediation, what is the best, most likely outcome for you. For a case in suit, this means the result you most likely expect to get at trial (not the best result you could get). This is often a best estimate, not an accurate prediction. Remember that before you draw lines in the sand later.
PREPARING, PART TWOSTEP 10
Consult with your client. Educate her on the elements of the case, strengths and weaknesses, your theory of the case and argument, and an evaluation of the most likely outcome for you if the case does not resolve at the mediation (your BATNA). It is her case - she needs to be involved in the process.
Make sure your client gives you authority for a resolution (usually a dollar amount) and has informed her superior (if any) of that authority.
Prepare and submit a position statement. If the statement will be shared (I recommend it is), set forth your position in a persuasive (but not offensive) manner to your opponent. The statement should be clear, to the point, and outline the relevant information.
I recommend the following sections: 1. A statement of the case; 2. The claims and elements of the claims; 3. A list of the completed discovery; 4. A summary of the facts (witnesses, documents, damages); 5. Your argument; 6. Weaknesses in your opponent*s position; 7. The posture of the case (operative pleadings, pre-trial and trial dates); 8. Last series of demands and offers.
Create your mediation strategy. What is your opening position, how will you address your opponent*s expected opening position, what is your opening offer, what moves do you plan to make, what is your BATNA?
Understand your client*s interests (not her positions) and think about your opponent*s interests (not his positions). To explore this concept more deeply, see *Getting to Yes* by William L. Ury and Roger Fisher.
Confirm two days before your mediation the date, place, and time with the mediator, your client, and your opponent.
Make sure the person with authority to settle is there. Meet with your client 30 minutes before the mediation to touch base and answer any questions.
Arrive at the mediator*s office ten minutes early. Have everything you need to make your case. Bring water, a snack, and power cords for your devices.
Have copies of your Position Statement for your opponent and the mediator. Give an opening statement that is clear, concise, and does not offend your opponent. Express your desire to resolve the case, but only on terms that are acceptable to your client.
State what issues and facts are not in dispute so the mediator can focus on the actual disputes.
Agree to not engage in last minute settlement games.
Caucusing. When you and your client meet privately with the mediator, be sure to communicate what parts of what you say are confidential and what parts can be shared with your opponent.
Have the right mindset: be calm, reasonable, mindful of your BATNA, and aware of your interests instead of your positions. Be aware of biases that may be preventing you from realizing your best interests. Check you ego.
Keep your client informed, advised, and able to make reasonable decisions.
Make reasonable, intelligent negotiation moves through the mediator. Each move you make communicates your position to your opponent.
Most cases reach an impasse just before settlement. Remember your interests; forget your positions. Reframe the issues, consider the other party*s interests, consider brackets, think of asking the mediator for a proposed resolution which the parties can confidentially accept or reject.
Is the impasse because of your BATNA? Remember, a BATNA is often a best estimate, not an accurate prediction. Have you fully considered not just the strengths, but the weaknesses of your case? You drew a line in sand, not stone.
Once the case settles, meet with your opponent, put the settlement terms in writing, and make sure there are no assumptions about the settlement terms.