by Corbet F. Bryant, Jr.
Sometimes attorneys are unaware or mistakenly dismissive of effective steps to accomplish their clients’ goals in mediation. Here are 10 tools worthy of more consideration.
1. Educate the Mediator Earlier. Mediators prefer hitting the ground running on mediation day. Advance mediation position papers assist that. Too many attorneys deliver position papers late on the prior day or fail to submit one. Do not give your position paper low priority. You better serve your client by providing the mediator an early chance to absorb the issues.
2. Pre-Mediation Issue Elimination. Consider whether there are fact disputes that can be eliminated prior to mediation. A prime candidate is damage calculations. You may still disagree with the opponent’s theory of damages while checking its math calculations. That will save time on mediation day when the mediator tries to isolate the true disagreements.
3. Avoid Markers of Disrespect. Some acts unnecessarily aggravate opponents. One is revealing during the mediation that your representative must leave early. Communicate schedule modifications prior to mediation.
Another irritant is using an obviously powerless representative. Sending the assistant mail clerk also sends an unserious message.
Communicating that a party “never” settles beyond a certain monetary level announces the party is not willing to evaluate appropriately the case at hand.
4. Do Not Unthinkingly Forego Joint Opening Sessions. Joint opening sessions are sometimes skipped for good reasons. However, too many attorneys reflexively waive that valuable opportunity. Attorneys speaking there have four audiences: client, opposing party, opposing attorney, and mediator. The most important is the opposing party. It is the only ethical chance during litigation to speak directly to the opposite party unfiltered by opposing counsel.
Also, the session offers important observation opportunities: the body language of the opponents, the content and tenor of the opposing attorney’s presentation, and the relationship between the opposing party and attorney.
5. Letting Your Client Speak. Most attorneys would never permit their clients to speak during a joint session and many heavily restrict clients’ interaction with the mediator. Counterintuitively, in some circumstances a client’s heartfelt description of the client’s experience can be the strongest persuader of the other side. The speech must be unscripted and unrehearsed.
The mediator must build a relationship with your client to get a resolution. Do not put roadblocks in the communications path between them.
6. Do Not Reverse Course on Offers. Occasionally a mediation begins with a party’s first offer being worse than its last offer before the mediation. The adverse effect in the other room is predictable. There is always a colorable justification. It is tough for the mediation to proceed. Avoid such deadly offers if at all possible.
7. Holding Back Your Aces. Litigators understandably become very possessive of their best cross-examination points as trial approaches. It is painful to share them with the mediator for use in the other room.
Clinging to strong points the other side has not yet fully appreciated diminishes the odds of a settlement. If you respect the mediator’s judgment and integrity, consider sharing your strongest points earlier rather than later and invest the mediator with discretion on their use.
8. Reciprocate Major Moves. During the mediation, the mediator is likely urging the parties at times to make more substantial moves. If the other side follows modest moves with a major move, do not continue your side’s series of modest responses. That would probably stimulate a claw-back reaction plus undercut the mediator’s influence. You certainly do not need to match major moves dollar for dollar, but a repetition of your prior move will harm the progress of the mediation.
9. Bring Collectability Issue Supporting Documents. If your defendant client is intending to “plead poverty,” bring supportive documents to the mediation. Do not expect the other side to accept your client’s word. Financial documents created when your client’s incentive was to paint a rosy picture are the most persuasive proof.
Also, honesty with the mediator in this area is crucial. Do not get the mediator to go to bat for you on assets based on information your client knows to be false.
10. Lawyer to Lawyer Meetings. Sometimes late in the negotiation, a side conveys non-negotiable points that are not accepted in the other room as legitimate. An impasse seems unavoidable.
The best solution may be a direct discussion between the opposing lawyers with or without the mediator. Quite often the sincerity of the opponent on the crucial point can then be accepted and the issue solved.
Corbet F. Bryant, Jr. is of counsel at Carrington, Coleman, Sloman & Blumenthal, L.L.P. He can be reached at firstname.lastname@example.org.