by Al Ellis
♫ “Oh Lord, won’t you buy me a big diamond ring?” ♫ - Janis Joplin
Just as Janis Joplin prayed for a diamond ring, mediators too have a few prayers their own. Following are a few of those prayers and incantations.
Prayer 1 – Lawyers, please talk to each other in advance. Attorneys and their representatives often come to the mediation never having had a discussion about the potential for settlement.
Sometimes, a party’s position is set in stone, and they have no room to negotiate. If this is the case, the lawyers should discuss the issue and ask the court for relief from mediation. For example, insurance companies often classify car crashes as minor vehicle damage/chiropractic care cases, and by policy or procedure, are prevented from making any offer above a small predetermined amount.
On the positive side, at times, good attorneys just have not discussed settlement. As this article was being written, two fine attorneys came to our office for a mediation. I asked them if they could talk and settle the matter without me. They did!
Prayer 1A – Please make an initial demand and settlement offer to each other. Long, long ago, before there was such a thing as mediation, lawyers and clients settled about the same percentage of cases as they do in mediation by talking to each other in advance. At the very least, a mediator prays for an initial settlement demand and offer prior to mediation.
Prayer 2 – Please read your file before mediation. A brief overview so you know the basics of the case prior to mediation is very helpful. First, it increases your client’s confidence in your representation. Second, it shows the mediator you are familiar with the facts and are prepared to enter into negotiations from the get-go.
Answering this mediator’s prayer is especially helpful since we have fewer general sessions. The first opportunity for the mediator to learn about your position may be the initial discussion with the lawyer and his client. In this regard, while it is not always mandated, it is extremely helpful to the mediator to have a very short position paper available in advance.
Prayer 3 – Please trust the mediator when asked for your bottom line goals. So often, parties are hesitant to provide the mediator with their final goals for they believe the mediator will then use that information to negotiate a settlement which is short of the goal. By the end of the mediation, the mediator will be pushing all parties to accept or pay less than their final goal, but you will be surprised how often one party’s final goal is within the parameters of the other party’s final goal.
Prayer 4 – To paraphrase a well-known political slogan, “It’s the process, stupid.” Settlement of all cases, but especially cases with significant disputes regarding liability or damages, requires allowing the process to develop. While it may appear there are significant delays in progress, or nothing is happening, this is not normally the case. Good mediators spend a significant amount of time with lawyers and parties just getting to know the players, their backgrounds, their history, and their personal attitudes toward the lawsuit. Getting to know everyone on a more personal level helps everyone to relax and become more comfortable with the process. During the process, listening for the casual comment that may open the door to a successful result just takes time.
Prayer 4A – Please explain this “dance” to your clients. As lawyers and mediators, we all know initial demands by the plaintiffs are much higher than the value of a claim, and initial offers by the defendants are much lower than the value of a claim. This is the so-called “dance.” If a client is not prepared for this process, he or she may become discouraged and decide to quit dancing. Both when we are mediating and when we are being mediated upon, we explain the first few rounds will involve substantive discussion of liability and damage facts. After that, clients will feel like they are purchasing a used car. Encourage clients to be optimistic for as long as offers and demands and proposals are going back and forth, there is always hope for resolution.
Prayer 5 – Please understand and recognize the good, the bad, and the ugly of your client’s claim. If you are not comfortable discussing some of the negative points in the presence of your client, arrange to talk to the mediator privately. Having said that, it is usually better for you to discuss the negatives in the presence of your client. The mediator can also be of benefit to the lawyer and his client by affirming the validity of troublesome areas or the validity of positive areas, so the client is hearing the same thing from a neutral source.
Prayer 6 – Please trust the mediator. (Oh, did I say that already?) The mediator is gathering knowledge and information from all parties and their lawyers. The mediator is using the information to convince parties to change their positions. While it may seem like the mediator is advocating for an opposing party, the mediator is simply trying to move parties closer to a final resolution.
Prayer 7 – Oh Lord, won’t you give each lawyer Will Pryor’s book, “A Short and Happy Guide to Mediation.” Caveat: The author is not Will Pryor’s agent, nor is he receiving royalties from the purchase of the book, but feels strongly this short 141-page paperback should be read by all lawyers, participating in mediation.
Like it or not, mediation is here to stay. If a case is truly not one which should be submitted to mediation, let the court know in advance. Prepare yourselves and your clients for the dance. Totally and completely trust the mediator with all significant facts, whether they be confidential or not, and be completely honest with the mediator in regard to your goals.
Al Ellis is past president of the DBA and is Of Counsel at Sommerman, McCaffity & Quesada, L.L.P. He can be reached at email@example.com.