More often than not, the resort to any alternative dispute resolution process, be it in the form of mediation or settlement conference, occurs after the litigation process is already in full swing. As such, the client is fully vested financially as well as in the correctness and righteousness of their position. This is normally accompanied by a dislike and distrust of the other party, their attorney, their tactics, and their legal and factual positioning. After attending numerous depositions including their own, it is unlikely that the client is looking forward to being in the same conference room as the other party and opposing counsel, much less in having to engage in any rational discussions. After all, what can be gained except perhaps a reaffirmation from the mediator of the correctness of the client’s position, a flat out admission of wrongdoing by the opponent and an immediate acceptance of the client’s last offer of settlement?
Although client mindset and emotional condition can vary from case to case, unnecessary and poisonous baggage that the client brings to the mediation can derail the process before it ever gets started. This can be true even in the context of a commercial dispute. Seasoned business owners as well as those in management can oftentimes be blinded by emotional issues similar to those experienced by feuding spouses. Similarly, the inability of counsel, both in preparing the client for the mediation as well as during the mediation, to remove the hat of the litigator and replace it with the hat of the problem solver, can likewise place a black cloud over the proceeding.
As your client’s advocate, it is important that you engage your client well in advance of the mediation in order to educate the client as to the nature of the mediation process and its dynamics, develop a mediation agenda, create a series of settlement options, and to otherwise advise the client as to the best ways to hopefully achieve a satisfactory resolution once the process starts.
• Explain that the process, including all communication exchanged, is confidential, thus freeing up the parties to have more open and honest discussions geared towards a resolution.
• Emphasize that this is an opportunity for the client to help fashion a reasonable final solution to the conflict and to create certainty and closure, thus avoiding having to live with a ruling, order or verdict that may be much less favorable.
• Explain that the process to be successful, is dynamic. It requires the parties to engage in active listening and creative problem solving. Merely re-stating prior demands or responses, financial or otherwise, will not be productive.
• Contact opposing counsel prior to mediation to prepare for the upcoming session and discuss any procedural issues in advance. Involve the mediator, if necessary. You are going to be face to face with opposing counsel in a mediation session – you might as well use the pre-mediation phone conference to remove your litigation hat and begin the process of creating settlement options. Initiating the pre-mediation telephone call is a sign of professionalism, not weakness!
• Make sure that all information necessary in order to come to a resolution is available for exchange or review, or is otherwise immediately accessible from other sources. Develop a strategy for selective disclosure of information designed to solicit reciprocal disclosure by the other side.
• When the dispute may directly or indirectly affect individuals other then the participants, or if the client may otherwise need informal permission or approval from a third party, consider having those persons in attendance or available by phone, being cautious, however, not to allow the process to be controlled or undermined by the third party.
• In the context of commercial disputes involving various entities, make sure that the person who is participating in the mediation is knowledgeable and informed as to key facts, and has the actual authority to bind the principal and to execute any settlement agreement or memorandum of understanding at the conclusion of the mediation session. Conversely, be cautious of those representatives who may, as a result of their own personal involvement, be forced to reveal their own errors or omissions in the context of the settlement process that may in turn taint or derail the settlement process.
• Allow enough time for the mediation to come to its logical conclusion and for the parties to fully explore resolution of all issues. Neither the client nor counsel should schedule other activities or phone conferences or otherwise create arbitrary time limitations.
• Assist the client in the preparation of the “Problem Statement”, the mediation equivalent of the opening statement. Emphasis should be placed on a client statement designed to personally convey problem solving information in a non-inflammatory, non-accusatory fashion. A carefully crafted, well rehearsed and honestly delivered statement will almost always force the other party to reciprocate in like fashion.
• Expect the mediator to magically assist the parties in reaching an agreement without the active, knowledgeable and positive participation of each party and counsel. Mere shuttling of offers and counteroffers between rooms with the expectancy of arriving at acceptable middle ground very seldom results in a settlement, much less one that is a result of creative problem solving.
• Allow or permit yourself or your client to continue to take positions that cannot be supported, either factually or legally. Deftly and subtly, if necessary, use your problem solving skills to assist in slowly moving a client away from arbitrary and illogical positions.
• Confuse your role in this process versus your role in the courtroom. You are here not to persuade the mediator and the other party and their counsel, but to help your client facilitate an agreement. Save your trial skills for a later time. If the firm’s and the client’s resources permit, consider involving co-counsel with an ADR background to participate in the session and to assist in the preparation and strategic planning phase.
• Come unprepared, having given only cursory thought to planning a strategy. Well in advance of the session and with the help of your client, develop an initial mediation agenda with the understanding that it will change during the course of the mediation. In addition to monetary options, discuss the client’s interests, needs, and motivations. Attempt to assess those of the other party. When engaged in this process, emphasize to the client that mediation discussions and admissions are not signs of weakness nor should you by participating, be viewed as now being in the enemy’s camp.
• Expect a quick resolution. Remember that the other party and their attorney must “buy in” to the process as well, and that they may have issues previously unknown that will have to be addressed. Impasses can and will occur. Encourage the client to be patient and to work through those temporary barriers.
• Expect the process to be pain free, without anxiety and tension. Statements and accusations will be made that will anger you and your client, and vice versa. Controlled confrontation and venting are usually the ingredients to gain the understanding necessary to come to a resolution. Listen attentively and attempt to assist in re-framing the issues to minimize inflammatory statements and toxic tones.
• Allow the client to limit settlement boundaries in terms of a monetary amount only.
Be creative in helping the client to explore additional non cash components of an agreement that would be acceptable. Try to expand the “pie”.
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