Mistakes Lawyers Make: Mediation

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Effective representation of clients in mediation requires the same level of preparation, diligence and assertiveness as is required in presenting a jury trial. The outcome of a mediation session depends, to a large degree, on the performance of counsel. Having served as mediator of probably over a thousand civil cases of all kinds, I have concluded that what lawyers do can make a big difference in the outcome.

The following are the ten biggest mistakes
that I have seen.

1)Failing to communicate willingness and ability to try the  case.

While it may sound strange coming from a mediator, I believe that too many cases are settled. Of course, in the vast majority of instances, the parties on both sides are
better off settling then taking their chances before a judge, jury or arbitrator. On the other hand, the key to achieving a reasonable settlement for a client is to make clear that
counsel is ready, willing and able to try the case. Unfortunately, some lawyers have the reputation that they will settle any case, on the courthouse steps if necessary.
Opponents know this, and act accordingly, even in mediation.

Lawyers and parties should participate meaningfully in the mediator’s effort to explore weaknesses as well as strengths of a case. On the other hand, after full exploration of a case and careful consideration of the settlement positions of the other side, there are indeed cases in which it is appropriate to walk out of mediation.

2) Making aggressive “opening statements.”

Most lawyer-mediators in business or personal injury cases conduct a short opening meeting with all sides present. After explaining the mediation process and confidentiality, most mediators invite   comments from each side. The trend is away from using this opportunity to present aggressive or inflammatory statements of the case. It is often best to say nothing or perhaps to state that while one’s client feels strongly about the correctness of his or her position, the client is here to bargain in good faith, or words to the effect. Leave it to the neutral mediator, in private caucus, to discuss problems with the opponent about its case. The message is often more effective and clear when delivered through this means. On the other hand, of course, be prepared for similar treatment by the mediator during private caucus with ones own client.

3) Failing to adequately prepare the case.

It is a rare mediation that requires the same amount of preparation as a jury trial, but counsel should not underestimate the work necessary to do the job right. It may not be appropriate to look under every rock, but the
lawyer in mediation should know what rocks are out there. A mediation is nothing other than an accelerated, facilitated negotiation. As in all negotiations, knowledge is power.
The mediator will be spending much of his or her time exploring with counsel and client potential weaknesses in the case. While it is foolish not to listen carefully to what the mediator has to say, counsel should not hesitate to point out when the mediator may be wrong. More importantly, a key to achieving a good result in mediation is to help the mediator in conducting the same process with the opponent. There is no substitute for presenting to the mediator a view of the facts that can be supported by
admissible evidence and a reasonable evaluation of trial outcomes, based on applicable legal authority, arising from
those facts. Good mediators will “smoke out” bluffing and generalities.

4) Failing to adequately prepare the client.

Experienced litigators never take their clients to deposition or trial without thorough preparation. The same should go for mediation. The client should understand ahead of time the general nature of the process, including the rules of privilege and
confidentiality in mediation, and in the non-binding nature of the process. Even more importantly, the client should have the benefit before the mediation of his or her lawyer’s evaluation of the case, and potential pitfalls and weaknesses. With such prior preparation, there is no need for counsel to “grand-stand” in front of the client during a
private caucus. There are few civil cases with 90 percent chances of success, and it is not productive to take up the time of the client and mediator in expressing that level of confidence about the outcome. A client’s level of trust in his or her lawyer can be
irreparably damaged if the client learns for the first time, at mediation, that there is risk of summary judgement or that anticipated attorneys’ fees and costs will be substantial.
The mediator will be asking about these issues, and it is devastating to a client to hear about them for the first time at the mediation session.

Clients appreciate aggressiveness and diligence on their behalf, but also respect honesty and candor from their lawyers.

5) Revealing a “bottom line” to the mediator.

Its is generally best not to reveal a client’s “bottom-line” to the mediator, even in confidence. For one thing, a settlement position should be flexible, based upon new insights and new information gained during the mediation process. Also, while the mediator will respect the confidential nature of such information, counsel can expect
the mediator to argue it against the client in private caucus. It is generally better to let the mediator and opponent try to infer where ones client may be going, based upon the
course of negotiations.

Most mediators prefer not to be granted discretionary authority on behalf of a party because of concern that the mediator may lose neutrality by making bargaining decisions on behalf of one side or the other.

6)Failing to understand the status of a pending settlement.

When and if agreement in principle is reached, it is important to pin down whether or not the settlement is blinding and effective. It is often (not always) desirable to leave the mediation session with a binding settlement. While it is the job of the mediator to facilitate possible settlement, the goal is not settlement at all costs. If one or both sides still have doubts or uncertainty, or there are further details to be worked out, there is nothing wrong with leaving the matter open, subject to mutual acceptance of final document provisions. What is troublesome, however, is if counsel leaves the client with a wrong impression concerning whether or not a binding deal has been reached. The mediation agreements used by some mediators provide that any agreement in principle reached at the mediation will be non-binding unless and until reduced to a writing signed by all the parties. It is important for counsel to be familiar with the terms of the mediation agreement in use. With such a provision, if a party desires a binding deal before leaving the mediation, there are several approaches.
It is often convenient and effective for the mediator to prepare a “binding term sheet,” which summarizes the terms agreed-upon. The term sheet further recites that counsel will prepare formal settlement documents, and that meanwhile the term sheet, when signed by all parties, reflects a binding and effective agreement. It is helpful, under this approach, to recite in the term sheet that the
mediator shall serve as a binding arbitrator, after a summary telephone hearing, concerning any irreconcilable differences in the final contract language.
In simple cases, a final and binding settlement agreement can be prepared and signed at the mediation. Even in complex cases, if all the details are worked out, counsel and the parties may prefer to spend even several hours in preparing a final settlement agreement.

This article originally appeared in the Oregon State Bar Bulletin (June 1999)

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