Most lawyers are aware of the statistic that indicates nearly 95 percent of all civil cases settle before trial. This statistic suggests that mediation advocacy skills are more important to cultivate than trial advocacy skills. What you need to know to be a successful mediation advocate is very different than what you need to know to be a good trial lawyer. The following are ten important things every attorney planning for a mediation needs to consider:
1) A mediation is a facilitated negotiation
Mediation, very simply, is a facilitated negotiation. The attorneys and clients are the negotiators and the mediator is the facilitator. As simple as this may sound, understanding what it means is the key to preparing for and handling a mediation. The mediator is not a decision-maker, although certainly a decision influencer, and no matter how well you convince him or her it won't matter if you haven't convinced the other side. The person or persons you need to convince are the decision-makers on the other side.
2) Send your brief to the other side
Your brief is almost always the first opportunity you have to convince the decision-maker on the other side, whether it be the client, a CEO or CFO. If you don't send a brief, the only version of the case that the other side's decision-maker has is what they have been told by their attorney. If they come to the mediation without your view of the case, the mediation will be much more difficult. Sending your brief to the other side doesn't mean you have to reveal everything. You might decide to withhold some facts or case law for a crucial point in the mediation, but not to provide the other side with a brief is a lost opportunity.
3)The real decision-makers should be present at the mediation
Make sure you bring your ultimate decision-maker with you and do everything you can to get assurance from opposing counsel that they will bring theirs. Sometimes it is not so obvious who these people are -- don't be afraid to ask. Not uncommonly, the real decision-maker, e.g., insurance claims manager, cannot come to the deposition. You should make sure they are available by phone. Nothing is more frustrating than having everyone present at mediation about to agree to settle only to find out that one party's decision-maker is in New Jersey and doesn't "get it."
4) Preparing the client
You should explain to your client that there are generally, but not always, three stages in a mediation. The first is an opening statement by the attorneys. The second is the joint caucus, where everyone gets to ask questions and make comments, if they choose to do so. The third stage is a private caucus when the mediator meets with the attorneys and clients privately. Sometimes parties skip the first and/or second stage and go right to the private caucus. However, as indicated below, the opening statement and joint caucus can be very fruitful for the prepared advocate.
Whether you have your client speak at the mediation depends on whether or not they are able to help you persuade the other side. If they are a good witness, then of course you prepare them to talk. If they are not such a good witness then put a tight rein on what they say. In either event you should be very clear with the client on what is expected of them. Also, let them know that there might be questions in a joint caucus from the other side and from the mediator.
Make sure your client understands that at mediation "patience is a virtue." Getting frustrated and drawing an early "line in the sand" is counterproductive and the client needs to understand that the process needs time to work. Something that is totally unacceptable to the other side in the beginning might be something they agree to by the end of the mediation.
5) Negotiation strategy
You should prepare a negotiation strategy with your client. Decide what your first offer or demand is and have a clear rationale for it. Also have a general idea of how you are going to move down to your "bottom-line."
You should think about what the other side's negotiation strategy is likely to be and prepare for it. What are they going to say and how can you counter it? What kinds of arguments are going to work with the opposing attorney and client? Are you prepared to walk out, and if so, what will trigger such a move? Are the interests of the attorney and client on either side different and can they be exploited at the mediation?
Most mediations are purely "distributive": one side pays the other money. But in cases where there is an ongoing relationship between the parties, there are often other options that can help resolve the dispute, such as a joint venture in a business case or a retraining program for a fired employee in an employment case.
6) Opening statements
A brief and succinct opening statement is an opportunity to convince the other side that you know the case and will be a persuasive advocate at trial. The best opening statements are short, and directed not at the mediator, but at the other side.
A measured and restrained use of graphics can be helpful. Don't overpower the other side. Remember, you're trying to convince them, not beat them into submission. It is best to use a conversational tone. Save the rhetorical flourishes for trial, if you don't settle.
7) Joint caucus
If you decide to use your client this is a good time to do it. But again, be very sure of what the client is going to say.
Encourage the other side's client or representative to talk. During the casual atmosphere of a joint caucus, people very often say things that you couldn't get out of them in cross-examination. Listen politely to what they have to say and probe, if the other attorney will let you. Even if you don't learn a lot, letting them vent can be important. As the old saying goes, "People aren't prepared to listen until they first feel listened to."
8) Private caucus
This is a process that most resembles buying a used car. Offers and demands are carried back and forth by the mediator, often with additional facts for both sides to consider. Be aware of the implicit messages your offer or demand sends. For example, does it appear you are headed "towards the middle"? When the mediator is with the other side, use that time to review what has happened and prepare your next move. Try to figure out what their last move meant and how to respond.
Don't be afraid to ask the mediator his or her opinion about what you ought to do and what the other side is thinking. He or she is not in a position to breach a confidence, but there is a significant difference between revealing a confidence and giving you advice about a next move.
9) Settlement agreement
Many mediators provide their own boilerplate form settlement agreement but you may want to bring your own. Don't leave without having a signed agreement or all the good work you have done at the mediation may be for naught.
10) Mediation's most important key to success
The outcome of a mediation depends on many factors -- the facts, the law and the skill of the attorneys -- but usually the case ultimately settles in favor of the side that appears most prepared to try the case and least in need of the settlement. You need to convince the other side that you would just as soon try the case as settle it.
Every attorney will handle many times more mediations than trials in a career. These 10 essentials for the mediation advocate are not everything that the lawyer needs to know, but they are the first step in becoming skilled at mediation.
Higgs has more than 20 years of experience in alternative dispute resolution and has handled hundreds of arbitrations and settlement conferences for both private parties and the San Diego Superior Court. He is a fellow of the American College of Civil Trial Mediators and International Academy of Mediators. For more information: www.craighiggs.com or (619) 236-1551.