USA - NATIONWIDE: An Introduction to Mediators
How to Get a Better Result for Your Client in a Mediation
Statistics show that over 95% of cases get resolved before trial. Many of those resolutions result from mediations. This statement is particularly true in high-stakes cases; the parties simply can’t take the risk of having someone they don’t know decide on the outcome of a business dispute. The purpose of this article is to give lawyers and parties some tips on how to get the best results in a mediation.
Some of this may be a bit sophomoric to seasoned lawyers, but a refresher course is good occasionally. So, here we go. When you prepare, remember that you are preparing for mediation, not a trial. The objectives and styles are different. Your tactic in a trial may be to destroy the other side, regardless of what they think. In a mediation, you will not benefit from a “scorched earth” approach. It does not hurt to be conciliatory; remember, you get to call the shots.
First things first – selecting a mediator. Consider choosing a mediator from outside the area where the dispute arises. This can be beneficial in those situations where a mediator works a market heavily, and particularly a mediator who works in a particular field. For example, if you engage someone who handles employment law disputes on behalf of disgruntled employees, that mediator may “have” to get a good deal for the plaintiff’s attorney because the mediator won’t get other mediation from the attorney if they don’t. And, if the lawyer does not get what they consider a “good settlement”, they might tarnish the mediator’s reputation in the community. On the other hand, a mediator from a different region does not face the same pressures, so can be more neutral.
You won’t benefit from inundating the mediator with a ton of material, you should be able to educate the mediator with 10–12 pages. And when all is said and done, your client won’t be happy having to pay the mediator for days studying volumes of materials supporting your case. They are not going to “decide” your case; so, give them enough to understand the issues and where the weak spots are in the other side’s case – trust me, they will take care of enlightening the mediator on the weak spots in yours! Bear in mind, the strength of your case is less likely to get you where you want to go than the weakness of the other side’s case.
You can’t get a “win” in a mediation, because if you get a win, the other side gets a loss, and they won’t agree to that, so prepare your client for a less-than-perfect outcome.
You are not arguing a case to a jury or judge, your goal should be to give your mediator ammunition that they can use in the other room to create doubt in the strength of their case.
When you make an offer, have a clear, logical calculation of how you arrived at the number. If the number is anchored on facts and logic, it is more difficult for the other side to respond with an arbitrary number. If your offer is without a foundation, you will likely get a response that is without a foundation and arbitrary numbers are difficult to attack.
Aside from what was stated immediately above, don’t let the mediator be in on your discussions with your client about settlement strategy. In fact, listen and don’t talk. Hear the mediator out, ask for time with your client and when you invite the mediator back into the room, just give them your offer/counteroffer. I hate to tell you this because you could one day use it on me, but after you have educated the mediator about the weaknesses of the other side’s case, shut down the information train. When the mediator goes into the other room and transmits the offer, they will ask, “How did they arrive at that number?” If the mediator can’t answer that question, there is nothing to contest. It drives the other side crazy, but they are kept in the dark and often what comes out of the dark is much more favorable to you than might otherwise be the case.
Don’t be afraid to make a big offer. Sometimes that can go a long way towards finding a solution. If you are defending a USD5 million claim, and you would happily settle for USD2 million, shock everyone by offering USD1million with the caveat that the offer is not a sign of weakness, it is just a good faith effort to communicate that you want to get the case settled. The other side will want to work with you, and they won’t think that you are playing games with them, which would be the case if you offered USD50,000. A USD50,000 offer would just offend the other side and cause them to dig their heels in. In my example, they might counter at USD4 million, and now you can try to inch closer to your target by responding with USD1,050,000. This shows a willingness to work something out and you haven’t created rage on the other side. It is not a sign of weakness to be realistic in your approach to negotiating settlements.
Try to keep emotions out of your mediation. Your client may be very mad, but mad does not change the facts of the dispute. I try to put some levity in my mediations on this topic by telling everyone that “I can’t mediate pissed off”. Usually everyone gets the message so that we can focus on the facts.
Ahead of the mediation, send to the other side’s lawyer a draft of a settlement agreement with the suggestion that the two of you should try and get a template that covers issues that are not being contested, leaving blank a spot to insert the meat of the settlement. Doing this accomplishes several things. First, it gets both sides thinking about settling rather than trying the dispute. Once everyone is pulling in the same direction, the chance of reaching a compromise is greatly enhanced. Second, you can resolve things like what a press release might say, the court that would have jurisdiction over a dispute regarding the settlement agreement terms, terms of the mutual release, poaching of employees, a non-disparagement provision, how to address disputes that may arise in the future, etc. This is unbelievably beneficial when you have spent ten hours fighting over substantive issues and both parties think that the other side has been unreasonable. If you then try and do a settlement agreement, both sides are going to demand terms that contain nuances that each wants and are unwilling to budge. And if you can’t get the terms of the settlement agreement resolved and put off the finishing of the undertaking until “tomorrow”, overnight “remorse” could wipe out everything that you accomplished the day before.