Effective Mediation Advocacy Tips

What do your clients hope to achieve at mediation?

  • Economic or other form of JUSTICE.
  • A MONEY settlement – pay minimum or receive maximum amount.
  • CLOSURE – an end to litigation expense, uncertainty, risk, worry, and distraction from more productive pursuits.
  • An APOLOGY – sometimes delivering an apology can pave the way to achieving a settlement.
  • TERMINATION of a relationship – dissolution of a marriage, business partnership, or corporation.
  • REPAIR of a relationship – usually a business relationship.
  • VINDICATION of their conduct or position.
  • EMOTIONAL SATISFACTION – having their “day in court” through simulation, being heard and understood by the mediator and by the other side; receiving validation by means of an acknowledgment that the mediator and the other side “get it” – even though they may not agree with much or most of what they have heard.

What should you do when a case is set for mediation?

  • PREPARE – what and how?
  • Prepare a confidential mediation statement for the mediator, but share whatever factual information or legal authorities you can with the other side – 98% of civil cases are not going to be resolved by a trial.
  • Contact the mediator if the mediator doesn’t contact you – there is no prohibition on ex parte contact – it is an essential part of the mediation process. Discuss current status of negotiations, whether the case is ripe for mediation, obstacles to settlement, special problems, lack of information, conflicting assumptions about facts or law, lack of authority, personality clashes, emotional issues, problems with your own client, necessary non-parties, making or avoiding precedent, obtaining or avoiding publicity, contingent fees.
  • Select the right client representative – consider: authority, personality, witness quality – but beware of a hidden agenda where personally implicated in fraud or other wrongdoing.
  • Prepare client representative – on law, facts, mediation procedure, need to listen and understand. Is there an opportunity to show off a good witness with a carefully rehearsed speaking role in opening statement?
  • Prepare an opening statement consistent with your written submission to the mediator. Know the facts and the law. Where appropriate, enhance the effectiveness of your presentation by use of Powerpoint, poster boards, handouts, visual aids, graphs, charts, tables, and key excerpts from depositions, pleadings, letters, emails, contracts, statutes, cases, and other relevant documents.
  • Prepare a case valuation analysis taking into account the cost and risk of litigation, including collection issues, where appropriate, as well as the best and worst alternatives to a negotiated settlement. Where size of case warrants, consider retaining a jury consultant to stage a mock trial.
  • Prepare a flexible negotiating plan – determine your client’s aspirational target bottom line dollar figure or package of concessions and what you will offer in each round of bargaining moving toward the target.
  • Prepare and bring to the mediation a draft of a fill-in-the-blanks settlement agreement – after a long day of negotiating it may be hard to remember and to craft skillfully all the specific and boilerplate provisions you will need to protect your client.

Whom should you speak to in your opening?

  • The Mediator? – is not a judge; has no power to decide anything; cannot impose a settlement on the parties; is there to listen attentively.
  • Opposing counsel? – is also not the decision maker; is thinking mostly about how to rebut what you are saying.
  • Speak to the opposing client representative – who has the power to decide whether and on what terms to settle; who will reap the benefits of a settlement; and who has to deal with the consequences, expense, risk, worry and distraction of going to trial. You can tell them – respectfully – what their own lawyers are unwilling or unable to say to them.
  • What tone should you use? You are there to make peace, so avoid being inflammatory or abrasive. Be conciliatory; show empathy. But also project confidence in the strength or viability of your case.
  • Lay the groundwork for a settlement with your opening. Set the right tone. Begin the dialogue by speaking to the decision maker.

What is the greatest fear of a negotiating party and how can you deal with it?

  • The greatest fear is of “leaving something on the table”, i.e., of not getting the best deal that could be obtained.
  • How do you let the other party know that it has been offered all that you are willing and able to offer? You do this by making tapered concessions: start with your biggest move to show you are serious about reaching a settlement and then make each successive move smaller than your last.
  • Even if you are not comfortable with this approach, you should nevertheless taper your concessions in the late rounds of bargaining to signal that you are running out of negotiating room.
  • Send a consistent message about what you consider to be the proper bargaining range for a settlement. This is easier to do if you have a negotiating plan, especially one that incorporates tapered concessions.

What mistakes do lawyers make in mediation?

  • Negotiating against an “empty chair”, i.e., allowing an adverse party not to attend or to attend by phone or video conference, unless absolutely necessary.
  • Negotiating against an “empty suit”, i.e., an opposing party representative who lacks authority to make sufficient concessions to settle the case.
  • Selecting the wrong client representative – too little authority, too much emotional volatility or culpable personal involvement.
  • Failing to secure the attendance or other availability of a non-party necessary to reach a settlement, such as an insurance adjuster, guarantor, indemnitor, spouse or significant other.
  • Sending the wrong lawyer – if you intend to make peace, don’t send Mongo.
  • Waiving opening statement – this is your chance to speak directly to the opposing decision maker and gives all parties the opportunity to vent and to have their “day in court”.
  • Becoming impatient – mediation is a process; a dance. Don’t be frustrated by “insulting” offers. The process has to start somewhere. Of course, by starting with the biggest move tapered concessions help the parties start the process in a positive way.
  • Quitting too soon – before you know the other side’s bottom line.
  • Coming to the mediation to try your case before the mediator rather than to negotiate a settlement with your adversary.
  • Making your best offer your first offer – no one ever believes you.
  • Believing that bargaining must be symmetrical, i.e., that the parties should make equal concessions in each round of bargaining or overall – they rarely do.
  • Bargaining reactively and emotionally rather than pursuant to a well thought out negotiating plan.
  • “Yo-yoing”, i.e., randomly alternating large and small positional moves.
  • Proposing a link or bracket move, i.e., “We’ll go to $X, if you’ll go to $Y”, prematurely when the bargaining gap is still too wide.
  • Failing to signal the mediator and the other side in the late rounds of bargaining that you are nearing your final offer – by tapering your concessions and by instructing the mediator to tell them you have only a little negotiating room left.
  • Offering to split the difference.
  • Believing you are there to punish or vanquish the other side rather than to settle the case.
  • Failing to look at the case from the point of view of your adversaries – what do they need to settle the case; how will they interpret your offers?
  • Being gratuitously nasty – needlessly increasing the emotional temperature.
  • Making backward moves – these are almost always counterproductive.
  • Presenting ultimatums – these only paint you into a corner, so use them sparingly.
  • Failing to provide credible documentary evidence of a defendant’s uncollectability.
  • Suggesting in front of an adverse party that its counsel reduce their fees in aid of settlement.
  • Failing to draft a proposed settlement agreement and bring it to the mediation.
  • Failing to sign a binding agreement at the mediation table as soon as a settlement is reached – leave no opportunity for buyer’s remorse to set in.
  • Failing to have a transactional lawyer available to assist in negotiating and drafting a complex settlement agreement and to provide tax advice.
  • Failing to include in the settlement agreement, where appropriate, a disclaimer of any admission or inference of a settling party’s negligence, liability, fault, wrongdoing or illegal conduct.
  • Failing to include in the settlement agreement, where appropriate, provisions concerning confidentiality and non-disparagement.

How can the mediator help you to reach a settlement?

  • Engage and empower the parties – make them participants and not just spectators. Make sure they understand it is their mediation and that – guided by their counsel – they have the opportunity to play a leading role.
  • Moderate emotional issues – help the parties make rational business decisions.
  • Take the imaginary option – you get everything you want – off the table.
  • Help the parties determine which available options are in their best interests and choose the best from what are often unattractive options.
  • Help the parties communicate with and understand one another.
  • Help each party perform a realistic case valuation analysis.
  • Provide negotiating advice as to the form and amount of offers.
  • Remind the parties that they need only agree upon the terms of the settlement, and that they need not admit negligence, fault or wrongdoing, nor alter their opinions as to the merits of each side’s case.
  • Help the parties overcome reactive devaluation and attribution bias, the very human tendency to view a proposal from or action taken by an adverse party in the worst possible light.
  • Moderate the bargaining – reframe issues and comments. Provide a reasonable interpretation as to the meaning of offers made and positions taken by opposing parties.
  • Help the parties understand their adversaries’ points of view – how do they perceive your case and how will they interpret what you are proposing? What are their needs?
  • Tell your clients what you have been unable to get them to understand, appreciate, or accept.

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Bankruptcy Mediation is a treatise published by the American Bankruptcy Institute