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A Mediation Foundation to Enhance Your Litigation

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A Mediation Foundation to Enhance Your Litigation

In this presentation, we’ll present a foundation in mediation, which we’d say with no hesitation is becoming a routine part of litigation. This course is geared toward lawyers who are new to mediation, although even seasoned hands might find a few things to think about. We’ll explain what mediation is, how it works, and how to prepare yourself and your client. We’ll offer tips for the mediation session itself, and we’ll consider some common pitfalls involving attendance, settlement authority, settlement agreements, and confidentiality.

Presenters

Daniel Piar
Senior Staff Author
Quimbee

Transcript

Daniel Piar:  Greetings and welcome to A Mediation Foundation to Enhance Your Litigation, brought to you by Quimbee. I'm Daniel Piar, a senior staff author, a former litigator, and a state certified mediator. This presentation comes with slides, presenter notes, and some supplemental materials, which include suggestions for further reading. You can follow along as we go, or just sit back and enjoy the show, as we take on the basics of mediation.

   If you practice litigation, you'll eventually have an obligation to go to mediation. If you're new to this situation, you might feel some trepidation as you ask, "What in tarnation is this operation?" But fear not. We're here to give you some explanation to ease your tribulation. Stick with us, and you'll get an education to enhance your appreciation, earn your client's admiration, and give you cause for celebration/ you might even get a well deserved vacation. All right, all right, enough of that. Let's talk about the basics of mediation, how it works and how you can make it an effective part of your practice.

   It's easy for lawyers to underestimate the mediation process. Mediation might seem like a hoop you have to jump through on the way to trial or some mysterious ritual or a distraction from the more serious business of hardcore litigation. But remember, most cases never go to trial; they settle. And from that perspective alone, mediation is an important part of your overall litigation strategy. Remember too, your clients want you to solve their problems. Winning at trial is one way to do that, but it's not the only way. And it's not even an especially effective way in many cases. If you do it right, media can save a lot of time, a lot of headaches, and a lot of money, all of which will make your clients a lot of happy.

   In this presentation, we'll give you a solid foundation in the what's, why's, and hows of mediation. We'll start by explaining what mediation is and how it compares to other dispute resolution processes. Then we'll discuss how to get to mediation, whether that's by a court order or by agreement and what that might mean for your case. We'll walk you through a typical mediation session. So you'll see what's involved and then we'll get into some strategies for mediation, like how to prepare yourself and your client, how to get the most out of your mediation session, and a few pitfalls to avoid. By time, we're done, you'll know enough to make mediation a valued part of your practice.

   As we said, a moment ago, the vast majority of cases, well over 90%, never go to trial. Most of them settle, and for good reason. Litigation is expensive, trials are unpredictable, and the courts have more cases than they could possibly try anyway. So these factors account for the widespread and increasing use of alternative dispute resolution, or ADR. The alternative in ADR, of course, means an alternative to trials or to extended litigation. Now, ADR isn't just one single thing. It includes a variety of procedures that are sometimes confused with one another, but that can often work quite differently from each other. The two most widespread ADR procedures are mediation and arbitration. Arbitration is basically a system of private trials. The parties select a neutral arbitrator or sometimes a panel of arbitrators, and they serve as the judge. Instead of a trial in a courtroom, you have an evidentiary hearing before the arbitrator, who listens to the evidence and the arguments, and then makes a ruling just like a judge would. Depending on the jurisdiction or the relevant arbitration rules, there might be discovery before the hearing, and there might even be some motions that either party can file.

   Arbitrations usually are binding on the parties, depending on what they've agreed to. So the arbitrator generally gets the last word, and that ends the case. Now there are procedures to challenge or enforce arbitration awards in court, but those are really unusual situations. Usually the arbitration itself is the end of the case. Now, if this sounds a lot like regular court litigation, that's because it often is. Arbitration in theory should be a faster and less expensive alternative to courtroom litigation. But in practice, it doesn't always work out way, but arbitration does reduce the burden on the court system, and sometimes it can be cost effective. Arbitration also gives the parties a degree of privacy and confidentiality that they might not get in court. That's because arbitration hearings are usually private, and they're usually considered confidential, as between the parties and the arbitrator, whereas court proceedings, of course, are open to the public and court decisions are often reported.

   Mediation is a very different process from arbitration. Now here's an SAT moment for you. Arbitration is to adjudication as mediation is to facilitation. Say that at five times fast, or better yet don't. But we've just seen that arbitrators act like judges. Essentially, they're private judges. Mediators, on the other hand, facilitate settlement discussions. They are neutral parties, who help both sides think through their situations, think about the case, and talk to another with the goal of reaching a settlement. So here's a key difference between mediation and arbitration. A mediator can't force anyone to do anything. A court might require you to participate in mediation, but the mediator can't make either party settle. The mediator can't make either party compromise. All she can do is keep the conversation going and try to guide the parties to a resolution.

   So unlike a judge or an arbitrator, a mediator isn't a decision maker. The mediator is there to facilitate discussions between the parties. Now that's a valuable skill, and we're not saying that mediators can't be persuasive when they need to be, but mediation doesn't necessarily lead to a settlement or to any other particular result. It's all up to the parties and what they decide to do. And this is often touted as one of benefits of mediation. In a trial or an arbitration, your client's future is in someone else's hands. A judge or a jury or an arbitrator is going to decide what happens in the case. You can make your best arguments, but you have very little control over the result. In mediation though, the parties can exercise self-determination and autonomy. They get to decide for themselves what they're willing to do, what they can live with. And that's a pretty empowering thing, if it's approached correctly.

   Now, there are some less common forms of ADR that will mention just to be complete and provide some context. A mediation-arbitration, or med-arb if you're really cool, it combines mediation and arbitration. So the neutral party starts off as a mediator, but if the parties can't settle the case, then the neutral becomes an arbitrator who can then make a decision about who wins. There's also a process called neutral evaluation. That's where the parties select a neutral observer, who's going to review the case and will give the parties an opinion on the strengths and weaknesses of each side and perhaps an appropriate outcome. This process generally isn't binding, but it is a way for the parties to get some feedback on how strong their cases are and what the case might be worth.

   Settlement conferences are kind of like a sped up version of mediation. Judges often hold these conferences before trial. For example, the parties meet with a judge or with some other neutral, and they discuss settlement possibilities. A settlement conference is unlikely to involve the same time and techniques that you'd see in a mediation. Settlement conferences are usually a bit shorter. And even though the judge is a neutral party, judges sometimes will throw their weight around a little bit to try to push the parties into settling the case. You won't often see that, or at least not as much with a mediator.

   There's also a process called collaborative lawyering. And this is where the lawyers go into the case with the expressed intention of working together to settle it. If that doesn't work, then the first lawyers step aside and the parties hire a second set of lawyers, new lawyers, to litigate the case for them from there. And all these processes have their strengths and weaknesses, but mediation remains the most widely used method of ADR.

   So how do we get there? What are the has by which your case might end up in mediation? Well, there are basically two ways to get there. One is by court order, and the other is by agreement with the other side. So the agreement part's pretty obvious. The parties simply agree to mediate. And then they pick a date, they pick a mediator, and they go through the process. Court-ordered mediation is also kind of self explanatory, and that's where the court orders the parties to go to mediation. But there are a couple of wrinkles to the court-order process that we ought to mention. So in many jurisdictions, the parties are required to mediate the case at some point. Now, sometimes this involves a deadline, like so many days after the pleadings are served or so many days after discovery is finished. And a lot of courts have procedural rules or standing orders that include these deadlines for mediation.

   Now the courts will often let the parties select their own mediator, or, if needed, a court might assign a mediator from an approved list. Remember too, that when mediation is court-ordered, you're responsible to the court for scheduling the mediation, attending the mediation, and maybe for participating in good faith. Now that doesn't mean you have to settle the case, but it does mean that if you don't do what's required and go through the process in the right way, you'll find yourself on the wrong side of the judge. And of course, that's not a good place to be. The bottom line here is check the applicable court rules and the standing orders to make sure that you know what's required and when, in terms of taking the case to mediation.

   So why mediate it all? What benefits does this process have? If you have a choice whether to mediate, and even if you don't, it's really helpful to understand what benefits can come out of the mediation. We've already talked a little bit about self-determination, which is this idea that you can, to some extent, control your own destiny, in terms of resolving the case. And this is a really powerful, but sometimes underused, tool for getting your clients in the right frame of mind to participate. So ask your clients, "Would you rather have a say in what happens? Or would you rather let a judge or a jury decide your fate?" And very often clients can see, "It might be nice if I have some say in the outcome." Mediation can get you there. In a mediation. The parties can agree to do pretty much whatever they want to settle the case, as long as it's legal, so you can think beyond conventional damages or injunctions. Maybe your client wants the other side to acknowledge something, to change one of their practices, donate to a charity, make an apology. There are all kinds of creative agreements that you can make to settle a case in mediation that you just wouldn't get from a judge or from a jury.

   Another potential benefit of course are the cost savings. So here's a little exercise you can do. So first, I want you to multiply your hourly rate by a hundred, and that is probably the smallest number of hours you would spend on a case from a mediation through the end of a trial. So that's a pretty big number right? Now, take the same hourly rate, multiply it by 12, that represents your fee, plus the mediator's fee, for an eight hour mediation more or less. And of course that number times 12 is much smaller than the first number times a hundred, right? So you can show your client both numbers and ask, "Which one would you rather pay?" I bet you they're going to point to the smaller number, right? So your clients can have a ton of money by settling a case in mediation. And even if you're working on a contingent fee, instead of on an hourly fee, your client probably gets to keep more of the money if you settle than if you go to trial, so it's almost the same thing in reverse, right? "Would you rather keep more of the money? Would you rather give more the money to your lawyer? If you mediate, maybe we can get you a nice result."

   There's also the psychological benefit of repose, and this is often, again, a very underrated benefit of mediation. So think back to a stressful time in your life. And if you went to law school recently, or you took the bar exam recently, that's not going to be too hard, right? Now, how often did you think about that really stressful thing? Was it first thing in the morning? Did you think about it last thing at night? Think about it while you ate lunch or while you were brushing your teeth or watching TV? I've done all those things, you probably have to, and your clients do the same thing. The fact is litigation is extremely stressful for your clients. Judge Learned Hand famously said, "As a litigant, I should dread a lawsuit beyond anything else, short of sickness and death." And he should know, right?

   Litigation inevitably is going to feel personal, even if it's not. It can be emotional and not in a good way. It takes away time and energy that you can use for better things. And even if you're representing a corporation, that corporation is made of people. And those people are going to spend their time and their energy thinking about the case and dealing with the case. In a business setting, that has real dollar costs for the organization. So there's just a lot of value to any client, to any litigant, in putting the case behind you, moving on. And this is another potential benefit of mediation, the repose, the closure, just not having to deal with it anymore.

   So with all that in mind, let's take a look under the hood of a typical mediation session. So the goal here it is to show you what you can expect from the actual mediation, because after we do that, we're going to talk about how to prepare for it. But it's good to know exactly what you're preparing for, so we'll talk about the process itself first. We should note here, every mediation is a little bit different. Every mediator has her own style, her own approach, but most mediations have some commonalities. So mentally, just put the word usually before everything we're about to discuss, but this is going to be the general picture.

   So at the scheduled time and place, the lawyers and the parties and the mediator get together, usually in a single room, and they'll sit at a single conference table. Mediator's probably at the head of the table; the lawyers and the parties are on their respective sides. Some people call this a joint session. And this is how most mediations begin. Some mediators will encourage the party is to submit materials about the case before the mediation, like a case summary or something like that. But very often the mediator will come in with no idea what the case is about. And this is often a very deliberate choice by the mediator. They sometimes see this as a way to stay neutral, to avoid forming any preconceptions about the case. So be aware, you might have to educate the mediator about the case from the outset.

   So the mediator usually will give a brief introduction. They usually are going to talk about the benefits of mediation, the same things we've talked about here. And he'll talk about how he plans to conduct the process. And then, the mediator usually will invite each side to make a brief opening statement about their case. Now, in this part of things, the lawyers usually do the talking, although the parties might also be allowed to talk or invited to talk. But whoever talks, each side is going to explain what they think the case is about, what their positions are. And this isn't necessarily only the time for some heavy duty argument. You're not trying to persuade a jury here. But these opening statements can help the mediator get oriented to the case. And you can sometimes use them to signal some strengths or highlight some facts for the other side, to get them in the right frame of mind for the mediation ahead.

   After both sides have been made their opening statements, the mediator usually will split the parties into separate rooms and then we'll start talking to each party separately. And this is sometimes called caucusing. The mediator will caucus with each side. The benefits of this are several. One is that parties will say things in a caucus that they wouldn't necessarily say in front of the other party. And the mediator can ask questions, and you can have a much more candid discussion about the case. So from here on out, the mediator probably will go back and forth between the caucus rooms. He'll convey offers back and forth. He'll ask questions. He'll test the parties positions and generally will help the parties talk through the case, talk through their options and their needs and desires, and hopefully get to the point of agreement.

   Throughout the mediation, the mediators should be checking with each party about what information he can share with the other side. Now, the mediator might make suggestions about what would be helpful. He might say, "It would be useful if I could share this fact with the other side. Can I do that?" The parties, though, should have control over what gets shared with their opponents. So you can tell the mediator to keep certain things confidential, but don't assume that he will. So be really clear with the mediator at the end of each caucus what information will be shared with the other side and what won't. Also be aware that in most jurisdictions, most of the time, nothing that is said or done at the mediation can be used for evidence later in the case. On top of this evidentiary rule, the mediator is bound to keep everything confidential, except to the extent you say otherwise. And these protections are there, again, to help the parties feel free to speak candidly to the mediator, and sometimes to each other, about the case. And this sort of candor can often lead to a settlement more quickly than otherwise.

   The mediator might keep the parties separated in their caucuses for the rest of the mediation. Or at some point, he might suggest getting everybody back together in a joint session for some face-to-face discussion. And a lot of that will depend on how the talks progress and how the mediator likes to work. But if everything goes well, eventually a settlement gets reached. It is put in some form of writing, and everybody goes home.

   So that's just a skeleton outline of a day in mediation. Let's talk now about how you could prepare to make the day as productive as possible. And we'll break preparation down into three phases here. We'll talk about choosing a mediator, preparing yourself, and then preparing your client. So choosing a mediator, unless the court appoints a mediator for you, you and your opponent will have to choose your own. Now, some courts maintain lists of approved mediators, but usually the best way to find a good mediator is by word of mouth. Asking other lawyers ought to get you a number of recommendations. But as you make your selection, remember not all mediators are the same. Some of them specialize in certain practice areas like business or family law. It's open to debate whether it's better to have a subject matter expert as your mediator, but it is something you can account for if you want to.

   Something else that can be really important is the mediator's style. Now you might hear people talk about evaluative mediators and facilitative mediators. And generally what they mean is that some mediators are more concerned about the facts and the law and the immediate dispute, while other mediators might focus more on the party's relationship or the broader context of the litigation. Now, to some extent, that's the false dichotomy, but you'll find that some mediators might emphasize one aspect over the other. Some mediators are known from being more or less aggressive and pushing for settlements. Other mediators might be really skilled at dealing with stubborn parties. So it's helpful to know what the mediator typically does as their approach. Now, this kind of information isn't always available, and when you do get it, it's not always reliable, but it is worth looking into, if you think that a particular approach is going to be best suited to your case.

   So how should you prepare yourself for the mediation? Partly, the answer is, "Just like you'd prepare for anything else." You got to know your case. You need to know the facts, the law, strengths and weaknesses, and what's at stake. A thorough preparation is going to help you and your client negotiate, evaluate, and navigate the whole thing, and it's very valuable to go into a mediation being fully prepared. So as a starting point, you should know the rules for court ordered mediation in your jurisdiction. We'll talk about some typical rules later, but you really should be aware of things like who has to attend, and to what extent the mediation is confidential. The facts or your knowledge to the facts can depend on when the mediation takes place. And in particular, this can depend on whether the mediation is before or after the end of discovery.

   Now you won't be presenting evidence at the mediation, at least not directly, but you do need to be able to use the facts during the mediation to bolster or evaluate your bargain positions as the mediation goes on. So for example, if the mediator comes back from caucusing with the other side and says, "Hey, did you know X fact?" You'll waste a lot of time and energy catching up, if that fact takes you by surprise. By the same token, you can use helpful facts to your advantage. If you say, "I think we have a good case," well, that's less effective than saying, "I think we have a good case because of X, Y, Z facts." Your position is much stronger if you can support what you're saying with detailed factual assertions. So it can be helpful to bring along key documents or exhibits to the mediation. These can help the mediator understand the case, and you can sometimes use them to drive home an important point or a critical fact to the other side at a critical moment in the negotiations.

   Now, in addition to knowing what facts you have, you'll want to think about what facts you don't have and what facts you might need to feel comfortable settling case. Mediation is not part of discovery, but there's no harm telling the mediator that you need to know something in particular, like X fact, to fully evaluate the case. If you don't know that fact, the mediator might be able to get it from the other side and might be able to share that information with you, and that can ease the path to settlement. And you'll want to think about these issues from the other side's perspective too. There might be key facts that they don't know yet. And how willing are you to share those facts in the mediation? Is it likely that these facts will lead to a settlement? Or might it be better to save certain facts for trial or for later discovery? These are things you've got to think about.

   And for similar reasons, you've got to know the law. For one thing, the mediator might not know a particular bit of law. As we've said before, some mediators aren't subject matter experts. And in fact, some of the best mediators aren't even lawyers. If you have command of the law, then you can evaluate the case better. You can explain it to the mediator better, and you'll be able to modify or adjust your positions in light of facts or new facts you might learn. So you've got to know the law. It's really foundational.

   You can also project strength as you need to, and you can avoid losing credibility. For instance, it is not a good look if, during your opening statement, you demand some remedy that the law says you can't get. It'll look like you don't know what you're doing. And of course, that's not a very advantageous position to be in during a mediation or really any other time in a case. You're also going to want to prepare your opening statement. You usually want to keep it short to the point. And you want to think carefully about whether you want your client to do any talking in the opening joint session. Lawsuits can be emotional, we know that, and those emotions can sometimes get the better of people. On the other hand, some clients find that it's very therapeutic to say their piece, and some of them really can be very compelling when they speak for themselves. But it really depends on the client. It depends on the situation, and whether you think it'll be beneficial and whether you think it can be controlled and constructive, as opposed to something more dramatic, but maybe less useful.

   If you haven't been handling the case from the start, make sure you're up to date on the previous settlement discussions. What offers have been exchanged? And more importantly, why hasn't the case been settled yet? These are things the mediator might ask you. And if you can identify any particular sticking point, that is really valuable information, because it's going to inform your strategy, and you can share it with the mediator, and that can inform the mediator strategy in trying to get the thing settled.

   Finally, even though this sounds cliched, walk a mile in the other party's shoes. What's at stake for the other side? What are their interests in reaching a settlement? What are some ideas or offers or concessions that might motivate them? Because even if you have a great case, you really can't expect to go into a mediation and just roll over the other side with it. Mediation just isn't made for that sort of thing. If you really want to settle the case, you're probably not going to get your client's entire wish list. So given that, where might you give a little to get what you really want? We're going to come back to these issues a little bit later to give them some more context, but seeing the case in both perspectives, yours and the other side's, can be super valuable and really helpful.

   Now let's talk a little bit preparing your client, because this business about seeing the other side is also something you should talk to your client about. And this is where you and we can talk about a famous dichotomy in mediation, which is positions versus interests. So positions are what you say you want. Interests, on the other hand, are what you really want or what you really need to get from the case. For example, let's say that I've sued my neighbor for trespass, because her horses got out and trampled my favorite rose bushes. It's a very sad thing, but it happens. My position might be that I want $50,000. That's what I've demanded in my complaint. That's where I'm starting my negotiations. My interests, however, might be, "I want to get my flowers back. And I want to make sure that this doesn't happen again." So to meet my position, my neighbor has to pay me 50,000 bucks. To meet my interests, maybe she can buy me some new bushes and she can put up a better fence. But that's very different from writing me a great big check. And it's the kind of solution that might get the case settled much faster, positions versus interests.

   So you should go through aim thought process with your client before the mediation. Ask your client, "What do you really want from this case?" Or you can ask, "What would it take for you to leave with a settlement that you could live with?" Get the client thinking about compromise, but, more importantly, get them thinking about what they really want or what they really need, not just what they've been saying they want throughout the lawsuit. It's very easy to get locked into a position, "I want $50,000," without thinking about, "What do I really want or need? Well, yeah, again, I want my yard restored. I want a nice fence up there, so the horses don't get out again," very different things, positions versus interests.

   Now one barrier to these kinds of discussions with your client is this idea that if you talk about compromise and settlement, then you're showing weakness, and you're not totally on the client's side if you talk about compromising and settling. But this is just a huge misconception. And if you're having a problem with your client on this point, you really should bring it out directly and discuss this with your client if you need to. Because remember, your client came to you with a problem, and your client's counting on you to reach a solution. Your client might think that just because you're in litigation, the only thing to do is be completely inflexible and go win the case at trial. But you can remind yourself and your client that there's more than one way to solve a problem. And in fact, litigating things, trying cases, are probably some of the least efficient ways to solve any problem, because they are slow, they're uncertain, they're very expensive, et cetera.

   And this conversation sometimes can be difficult. Some clients just don't want to budge, and they don't see why this should compromise, because they're right. But you can often get past these roadblocks by reminding them of the benefits of mediation and the benefits of settlement that we talked about earlier. You can also remind them, if it happens to be true, that the court requires them to participate in the mediation in good faith. Now, some courts impose a good faith requirement, some courts don't. And the duty to mediate in good faith is actually kind of controversial. It sounds like an obvious thing. We should all act in good faith. But part of the problem here is defining good faith really means. Does it mean you're willing to exchange offers or demands? Does it mean being open-minded about the case? Does it mean you really want to settle the case? Or does it mean something else?

   And another problem is how do you police a good faith requirement? Mediations generally are confidential, so there really might not be much evidence about whether someone's acted in good faith, unless a court is willing to strip away confidentiality for that purpose, but of course that's very controversial. Some people think that any intrusion on confidentiality threatens the whole mediation process and everything that makes it worthwhile. So again, this is somewhat controversial, and it may or may not be rule in your jurisdiction. And we're not going to resolve the controversy here, but do keep in mind that, if you are subject to a good faith requirement, you can sometimes use this to point out to your client that they need to take the process seriously and constructively and be ready to at least think a little bit about being a little bit open-minded and maybe compromising, so that you at least act in good faith.

   Good faith doesn't mean that clients have to surrender their principles. And it doesn't mean they have to settle, but they got to be at least a little open-minded. And in some cases, the mediator has to report back to the court, whether the parties demonstrated good faith in the mediation. So if worse comes to worst, you can tell your client, "The judge might be upset if we don't go in there and at least make a good faith effort to settle."

   Now, you should also discuss with your client the facts and the law. On the factual side, it is best to be very clear in advance about what inform your client's willing to share or unwilling to share. And a short discussion of the law, if you need it, can lead to some informed discussion about the case during the mediation itself. Most of all, don't just show up to a mediation cold without preparing and expect everything to work out. It's well worth your time to do some advanced preparation and to make this process as productive as it can be.

   Now, let's talk about how you can best represent your client during the mediation itself. So in any setting, including a mediation, you have a duty to look out for your client's best interest, but how you go about doing that is really a different question. Lawyers often think that zealous advocacy requires this sort of hard-nosed, aggressive approach to the case, and sometimes it does. But it can also really pay to recalibrate your approach for mediation. In a typical litigation, especially in a trial, lawyers are trying to persuade someone to see things their way. And a lot of times this means you're also trying to discredit the other side or its arguments. That's because at the end of day, you need a judge or a jury to agree that you are right and they're wrong. But mediation is different. After all the mediator, as we've said is not a decision maker. And you are very unlikely to change the other side's mind about the case.

   Now that doesn't mean that you have to stop being an advocate or looking out for your client's best interest, but it does mean that you might need to modify your usual definition of success. The goal of mediation is to reach a workable settlement, and that means a settlement that both sides can live with. And a workable settlement is almost never the kind of scorched-earth, zero-sum victory that you're trying to get at a trial. So with that in mind, here are some specific ways that you can make the most of the mediation session. Some of these points are overlapping or, or they're interconnected, but they're all about making the mediation work for you and for your client.

   First thing is to adopt a mediation mindset, as opposed to a pure litigation mindset. In a mediation, the key decisions are going to be the party's own decisions about whether they settle and on what terms. People rarely settle a case because they've decided that they're actually wrong and they want to give up. So don't waste your time trying to convince the mediator or trying to convince the other side that you should win the case. Instead, think a little differently. Think about what might be persuasive, not from the perspective of who wins, but from the standpoint of how to settle. Mediation is more about problem solving than it is about winning. And that's a subtle difference, but that little shift in your mindset can really be important, if you see this as a problem to be solved, as opposed to a battle to be won.

   For example, let's say that you represent a salesman, and the salesman is his former company for unpaid commissions. Now, the company says it fired your client, because it found out he was soliciting customers for his own competing business. And the law in your state says that if the salesman was indeed trying to steal his employer's customers, then the company doesn't have to pay him for all the time periods when he was doing that. Your client, the salesman, is really angry about the case. He insists he did nothing wrong, and you agree. You believe with all your heart that he's been victimized by a very unscrupulous defendant. At the mediation, let's say that you first demand the company has to pay the salesman everything he's owed plus interest plus attorney's fees and make a public apology. Now that's not an impossible dream, but it is unlikely to get the case settled at a mediation, because here the salesman's demanding total victory, including what amounts to an admission by the company that it wronged him. This is the kind of finding that you might get from a jury at trial, but it's not necessarily the most productive approach to mediation, and we'll outline some alternative approaches in just a moment.

   You point out that we've emphasized emotion here, and that is a very real part of most cases. This leads us to another tip, which is to take emotion out of it, to the extent that you can. Clients usually believe that they're right, and their lawyers usually believe it too. And there's a time and a place for that kind of passionate advocacy, but it's not usually in a mediation. That doesn't mean that you can't be forceful about some things, but it does mean you should remember you're there, again, to solve a problem, not necessarily to win a battle. And this approach, this mindset, can open up potentially very effective tools and techniques to get to where you want to be.

   So going back to our example, let's think about how you might mentally reframe your case and a more problem solving kind of way. The sort of emotional pure advocacy view of the case says, "My client got ripped off by those money-hungry jerks, and they should pay." But a more mediation oriented view might be, "Hmm, my client wants to be paid what he's owed. And he wants to move on with his life. The company says they have reasons not to pay him, so how can we bridge that gap and get my client a fair settlement and walk away from this?" So this reframes the case in a less emotional way, and one that's going to be more conducive to a settlement. Now you'll notice too, that this reframing is a toward seeing the case from the other side's point of view, which as we've said, is really critically important. And we'll come back to that in a moment as well.

   Another tip here is don't get defensive. If you tamp down the emotion a little bit, you can feel less defensive about your case, because defensiveness can get in the way of a settlement. Every case has strengths and weaknesses. Even your case has strengths and weaknesses. And if you refuse to acknowledge your weaknesses, or if you refuse to admit the other side's strengths, then you're less likely to solve the problem and settle the case. One way that mediators test for weaknesses in someone's case is by using what's called reality testing. It's a great phrase, reality testing. So this is a technique where the mediator will ask you or your client some pointed questions that are designed to test whether what you are saying is realistic. This is sort of like playing devil's advocate, but it's a little more sophisticated than that sometimes.

   So let's say for instance, your client wants a hundred thousand dollars in back commissions and a million dollars in punitive damages, and you can get punitive damages only for extreme and outrageous conduct, let's say. So the mediator probably is going to ask you, "Well, what conduct is this punitive damages demand based on?" And your client's going to say, "Well, yeah, those jerks fired me for no good reason." The mediator says, "Okay, well, I can see why that would upset you. So if you go to trial, what are they going to say about why they fired you?" And your answer's going to be, "Well, they said I was trying to steal their customers." And the mediator's going to ask, "Well, will they have any evidence that you tried to steal their customers?" And the answer might be, "Well, yeah, we expect them to have at least two customers testify that my client offered them a better deal from a company that he was about to start." And that's where the mediator says, "Oh, and if the jury hears that, how likely do you think it is that they'll award you punitive damages?"

   So this is an example here, this dialogue, of reality testing. The mediator takes your client's million dollar demand, and he's brought it face to face with reality. You feel worked up about this. You feel strongly you need a million bucks, but the reality is that they're going to come up with some evidence, they're going to have some things to say, and maybe it really wasn't extreme and outrageous conduct. And through this process, your client might begin to see that maybe getting a million bucks isn't so realistic. Maybe he shouldn't insist on that quite so strongly. And that's how reality testing can work. But if your response to this sort of thing is just to get defensive and sort of dig into your position, you might not see this, and you might miss this opportunity to change your perspective a bit or to settle the case.

   So now let's circle back to this point about seeing both sides of the case, because as I hope you've seen by now, you just can't afford to ignore the other side's perspective. These folks on the other side have their own interests. They have their own view of things. They have their own evidence. Most of the time, they're not completely irrational. And all these things can give them reasons to say no to your demands. But if you can be a bit less emotional, if you can be a bit more objective, you might find a way to use their perspective as levers for problem solving. So think then about what you can give to get what you really want. And this can be a crucially important point. As we've said, it's very rare that one side settles for nothing, right? It's almost by definition a settlement gives each side something that they want. Now that doesn't mean that you have to pay off every nuisance lawsuit along. But if you think about it, you might find ways, in any case, to give the other side something, while you still get something that's really important for your client.

   So let's address this through our example. Let's say that the company rightly or wrongly believed that your client, the salesman, was trying to steal its customers. You're probably not going to change their minds about that during the mediation. But let's also say that one reason they reacted so strongly to this was because their business is going through some hard times, and they're really afraid of losing customers. This be a very bad thing for their business. So this brings us back to the idea about positions versus interest that we just talked about. The company's position is your client, the salesman, is a bad actor. He should have been fired. He deserved it. But the interest behind that position is they're scared about the future, they want some security for their business, and they felt threatened when they perceived your client as trying to steal customers.

   So here you might have a chance to give them something without compromising your client's interests. Let's say for instance, your client's planning to open his new business in the eastern half of the state, but company operates mostly in the western half. So maybe as part of a settlement, your client could agree not to seek customers in the western half of the state for two years. And in exchange, the company can pay your client all of his back commissions, so that's an example of an interest-based solution that gives the company some of what it wants, which is security from competition, in exchange for something your client wants, which is money, back commissions. It limits the scope of your client's business, but not very much, and maybe he can live with it, especially if it means that he gets what he really wants, which is to be paid. Notice too, this is an example of the kind of creative solution that you can come up with in a mediation that you probably wouldn't get from a judge or a jury at a trial. But if you're stuck in defensive, emotional mode, you might never see the opportunity. You might never get to this point, if you can't be a little bit objective and maybe a little bit willing to give something, to get something in return.

   Another point to raise is that you can think about sharing information and giving reasons for things that you say. So earlier, we talked a little bit about information sharing. We talked about thinking about what information you're willing to give, what information you might want to withhold. Now, one good use of information in a mediation is to give reasons for offers and positions that you may might take. If you make a demand, that tells the other side what you want, but if you give reasons, of course it tells them why you want it. And even though you're not trying to persuade someone in the sense of courtroom advocacy, anything you say in mediation is likely to be more effective, more credible, and more persuasive, if you can back it a up with reasons. And that's especially true if those reasons might actually help the other side reconsider its case.

   So again, let's see how this might work in our example. Let's say that you make an initial demand of $100,000 and the company rejects it. Now, the company might counter offer with $25,000, but that by itself doesn't really tell you much, except they don't want to pay 100, right? It might be easy to get offended at that point or think that they're not taking the mediation seriously, "Why, we demanded 100 thousand, and they came back with 25, and it that's just too little, and they're not serious." But things might look different, if the mediator comes in and says, "Look, they're offering 25,000, because that's the commission due based on the only paperwork the company has." Well now a lot more than you do in the other scenario where the answer was simply 25,000, without any explanation. You know, number one, there's an information problem, because the company apparently is missing some paperwork. And number two, the company might be willing to pay whatever the paperwork shows as due. So if your client has some missing paperwork, this would be a good time to get it out. You can give it to the mediator to show it to the other side. And that might move the needle significantly, if the company suddenly sees paperwork that says, "Oh yeah, we really do owe this guy 100,000," maybe things look very different.

   So notice how the possibilities opened up when you were given a reason for the company's counter offer. And of course this works in the other direction, too. If you explain why you're taking a position or why want something, it's going to be much more effective than if you simply stake out a position without any kind of explanation. All this is to say, you'll want to think carefully about information sharing, and you might need to be flexible in your planning so that you can respond to the flow of negotiations. So imagine the scenario where you have some sort of bombshell piece of evidence that the other side doesn't even have yet. Instead of saving it for trial, which might be tempting, you might be able to make better use of it during the mediation. So again, this requires a little advanced thought and a little bit of strategy about what might be useful.

   Remember too, another tip, that the mediator can help you with your client. Sometimes you'll go to mediation with a really stubborn client, who just doesn't want to give an inch, who resents having to be there, doesn't understand why the other side just won't give up and go away. And in these situations, you can turn to the mediator for help. Now, ethically you must remain loyal to your client at all times, but it's not necessarily improper to pull the mediator aside and say, "My client's having trouble accepting X fact," or, "My client seems not to be fully open-minded about Y advice that I'm trying to give." A good mediator is going to understand that you might need some help breaking down whatever the barriers are. So the mediator isn't allowed to give your client legal advice, nor is he allowed to get between you and your client, but a good mediator who knows the situation is going to be able to apply some focused reality testing or play devil's advocate or do something in a way that might help the client take a more open-minded view or a more realistic view of the case. So the mediator can really be your ally in the right situations.

   Now let's wrap this up with a few special issues that can be important in mediation. The first of these is the question of who must attend the mediation session. So in any mediation, it is ideal and even necessary for the parties themselves to be present and to participate. Mediation is not an exercise that takes place solely between the lawyers, because of course, it's the parties who have to make the decision about whether and how to settle the case. If you're in a court ordered mediation, it is highly likely that the court rules will require the parties to attend the mediation in person. And even if the rules don't require it, for some reason, it is by far the better practice to have your client attend. If that is not possible, for some reason, you should raise that issue in advance with the mediator and with the other party.

   So depending on your local court rules, the mediator might be able to excuse the party from attending or the mediator might be able to allow the party to attend by telephone, if the other side agrees. But it's a bad idea to bring this stuff for the first time when the mediation session starts. Get it addressed in advance anytime you can. Now, this can sometimes be a little tricky when a corporation is a party, or if some other organization is a party, or if you've got insurance coverage involved. A corporation or an organization will need to designate someone as its representative to attend the mediation. That's simple enough on its own, but this also raises the more difficult question of settlement authority. To settle a case, the party who's paying money, of course, has to approve the amount of the settlement. If you're in a corporation, there might be multiple layers of decision-making about this. And it's really important that whoever attends the mediation knows how much the corporation's willing to pay and has authority to agree to a settlement up to that amount.

   Now we should emphasize here, this settlement authority needs to be more than a token amount. It's very easy for somebody, who's sitting in a corporate office, to authorize a nuisance value settlement before mediation, without really thinking about the case, without really knowing anything about the case, "Yes, we'll pay $2,000 to make this thing go away." But if the corporate representative comes to the mediation with only nuisance value authority, that might go out the window very quickly as you get into the details of the case, if you suddenly learn, for instance, that this case has more than nuisance value. Now, if your corporate representative has to keep checking back with headquarters about any potential settlement or any settlement offer, that's going to slow the mediation down considerably, and it might derail the whole thing, especially if the other side thinks they're getting the runaround.

   Ideally, whoever attends the mediation will know that they can settle up to X dollars, and X dollars needs to be a realistic amount that's based on the facts and the details of the case. At the very least, you've got to make sure there's someone back in headquarters, who can be reached instantly, and who has the authority to approve any kind of settlement. Don't let settlement authority slow the thing down or derail the entire mediation. And courts will sometimes address this issue in their mediation rules, so a court might require somebody to attend, who has a substantial settlement authority or final settlement authority. Sometimes a court will say someone has to attend, who has authority to settle up to the amount of the other side's most recent settlement offer. But whatever the rules are, make sure you check them. Make sure that you and your client comply. And even if your corporate representative has substantial settlement authority, it's a good idea to have someone on standby back at the corporation, who can authorize a higher settlement, because you just never know when you might need it.

   Insurance coverage can raise similar kinds of issues. If insurance is going to cover any part of a settlement payment, then the insurance company probably has to approve the settlement. You also might be in a situation where there's a dispute about coverage. And that could really affect a party's ability to settle, if the company is disputing whether it has to be pay at all. So it might be that an insurance representative has to attend the mediation as well, or it might be necessary to confirm coverage in advance, including the limits of what the company will pay or the policy limits, so that you know, what you have to deal with. And some courts, again, will address this in their rules. They might require insurance representatives to attend.

   But whatever the situation, preparation here is really critical, because, again, it's easy for settlements to fall apart, if the other side suddenly learns, "I thought we had a deal, but now you're telling me you've got to get the insurance company's approval." That's the sort of thing that makes people walk away. And you don't want that to happen at the end of a long day.

   Speaking of settlements, preparing a settlement agreement is another important part of a mediation. At the end of a long day of mediation, it's going to be very tempting to just make a handshake deal and agree that you'll write the formal settlement documents later. But generally speaking, this is a bad idea. Partly this is a bad idea, because it's really easy for a verbal settlement to fall apart and to fall apart very quickly. People have short memories. It's easy for them to forget exactly what they said, or they might go home and have second thoughts about what they agreed to. Don't jeopardize the hard work of mediation with a shaky agreement at the end. If you want to preserve the settlement, you really need to make it binding at the mediation. And this also has to do with enforcement. So keep in mind, most courts will treat settlement agreements as contracts, and they can be enforced. So this means that you want to come away from the mediation, with a settlement that you can enforce, if the other side tries to back out of it later.

   Now in many jurisdictions and oral settlement agreement reached in mediation will not be enforceable. It's got to be in writing. Not only that, but it's got to be in a sufficient writing. So what kind of writing do you need for this thing to be sufficient, to be enforceable? Ideally, you leave the mediation with a complete formal, totally final signed settlement agreement, the big long kind with all the clauses and the wherefores force and all that stuff, right? And this isn't impossible to do, but it might be impractical. And it sounds like a minor thing, but at the end of the day, a lot of people just want to go home. They've got a plane to catch. They want to go home and relax. They've got dinner with their spouse or something. So it's really rare that anyone is going to volunteer to hang around for a few more hours, after the case is settled, so that you can draft the formal agreement. Now, the more standardized the agreement can be, the better your chances are of getting it in final form at the mediation itself. So it's a good idea to bring along boiler plate language, or maybe a long-form settlement document, where you can just fill in the blanks on the spot, and people could sign.

   If that's not feasible, then you might instead fill out a short-form agreement. And this could simply be a series of handwritten bullet points that summarize the major points to the agreement. In some jurisdictions, a short-form agreement like this can be enforceable, even if the parties intend to write a longer, more formal agreement later on. But if you use a short-form agreement, we'll call it, remember that you're basically writing a contract. So the agreement has to include all the essential terms of the settlement. Make sure it's not just an agreement to agree later, because that's not an enforceable contract.

   Here's an example. If you make a short-form agreement, and one bullet point says, "The defendant agrees to pay the salesman $75,000 in commissions owed." Well, that's an agreement. You've got something very definite you've agreed on. If on the other hand, the bullet point says, "The defendant agrees to pay the salesman all commissions owed up to a maximum of $75,000." Well, that's an agreement to agree later. If you don't have a fixed amount, you've still got something to negotiate, that probably is not enforceable. So do make sure that the things you put in writing are sufficiently definite to be binding and enforceable. It also wouldn't hurt to include in a short-form agreement, a bullet point that says something like, "This is the party's entire agreement, even though the parties plan to execute a more formal agreement later." If you expressly acknowledge that the short-form agreement is complete and enforceable, that's more likely to make it enforceable, if you have to go that route. In addition, the parties and their lawyers of course should sign the agreement, whether it's a long-form or a short-form. And the lack of a signature might, again, jeopardize enforcement.

   Now, whether you're trying to enforce an oral agreement or a written agreement, you're going to need to consider what evidence you might be able to use. Again, jurisdictions vary, but in some jurisdictions you cannot use evidence about anything that was said during the mediation to enforce a settlement agreement, even if that's a written settlement agreement. In other words, you might be limited to the content of the writing itself, which gets back to the point about have a sufficient writing. In other jurisdictions, courts might be a little more lenient about bringing in evidence from the mediation, but it's rare, for example, that a mediator could be called to testify. You might be very limited in what information or evidence you can present, if you can present anything at all about the party's negotiations.

   Now it's worth emphasizing just one more time, the law about enforceability can vary from one jurisdiction to another, so we really can't give you any absolute rules here. But just about anywhere, the gold standard of a binding settlement is a complete written agreement, so get a complete written agreement at the mediation or get as close as you can.

   Finally, let's touch on confidentiality. You'll hear a lot of people say that mediation is confidential or, "What happens in mediation stays in mediation." And this is generally true, but there are some loopholes that you got to watch out for. Again, the law here can vary from one jurisdiction to another, so there really aren't universal rules, but here are some things to think about. So first, you've out to distinguish between confidentiality and admissibility in evidence, because those are two different things. And some mediation rules rely on that distinction. Admissibility in evidence has to do with whether things said in mediation can be used in evidence at a trial or a hearing. Some jurisdictions to make it really clear that statements or offers made in mediation may not be used as evidence in the case.

   For example, there's a statute in North Carolina, which says, "Statements and conduct in a mediation are not discoverable. They are not admissible as evidence in the case being mediated." There are some exceptions to that rule, but there are very limited exceptions. The same statute says, "Mediators may not be required to testify or produce evidence about statements or conduct in the mediation," again, with some very, very limited exceptions. So under these kinds of rules and feel pretty sure that nothing from the mediation is going to come out at a trial or at a hearing. Confidentiality is a bit different. Confidentiality means someone can't repeat something they've said or heard. So for instance, in most jurisdictions, mediators have a duty of confidentiality. That means they can't talk about the mediation elsewhere. But this rule doesn't necessarily bind the parties to confidentiality. And again, in North Carolina, there was a situation where a case didn't settle in mediation, and the plaintiff's lawyer then went to the press and told a reporter all about the defendant's last settlement offer and how terrible it was and so forth.

   In an advisory opinion, the state dispute resolution authority found that the plaintiff's lawyer did not violate the mediation rules, because the duty of confidentiality was imposed on the mediator, but not on the parties. So remember, other jurisdictions might approach this differently, but make sure you understand the rules wherever you are. It's pretty sure that the mediator will be bound by confidentiality, but the other party might not be. And you might want to enter a confidentiality agreement in advance if you are concerned about that in your mediation.

   So this wraps up our examination of the basics of mediation. Thank you for joining us. You have our appreciation. We hope you've gained some education, a little stimulation, and some points for contemplation. There's always more to learn. So please do check out our course materials for some suggested further reading. Thank you for joining us. Felicitations and best of luck in your mediation.

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1h 1m 23s

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