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Preparing for Mediation: Best Practices for Inhouse Counsel

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Preparing for Mediation: Best Practices for Inhouse Counsel

Mediation is the parties’ process. So, it makes sense for inhouse counsel to spend time in advance to design the best process for each dispute. This program will address ways to bring recalcitrant parties to the table, mediator selection, and negotiation planning strategies.

Presenters

Erin Gleason Alvarez
Independent Arbitrator & Mediator
Gleason Alvarez ADR, LLC

Transcript

- Hi there and welcome to Preparing for Mediation: Best practices for In-house Counsel. So quickly by way of background, I'm Erin Gleason Alvarez, and I am a mediator, arbitrator and negotiation consultant. I was formerly a litigator and formerly served as in-house counsel. So here are our objectives for the discussion today. First it's to understand how to determine the best time for mediation, we'll consider different strategies for convincing criminal parties to mediate, appreciate best practices for mediator selection, review the essential elements of a pre-mediation negotiation plan, and then finally design a strategy for pre-mediation convening calls. So why are we doing this anyway? Right? So what's so great about mediation. First and maybe most importantly, it's that you have complete control over the manner in which the negotiation process is constructed. There are no hard and fast rules for mediation. It's completely different from litigation or from arbitration, in terms of the manner in which you set up communication processes and the way that you work with your counterparties and with the mediator. The other benefit is that parties have complete control over the manner in which the dispute is settled, right? So the decision to settle and the terms of that settlement are yours to decide upon, instead of that decision being made by a court or by an arbitrator. And then lastly, parties have a chance to select the best person who can support them in their negotiations in a mediation, right? And that's the mediator. So these three things, I think, perhaps this is a bit longer, but for our purposes today, these are really the three primary benefits about getting to the mediation table and why you wanna try to do that. So let's talk about when is the best time to mediate. Now, there are generally three ways that parties find themselves at a mediation, right? So either you've mutually agreed to mediate. You and your counterparty have had a discussion and regardless of the underlying contract or whether litigation has been filed yet or not, you've mutually agreed together that mediation is the right path. Another way is that actually your contract does require that mediation be leveraged. So to the extent dispute arises and the contract calls for either negotiation as a first step, and maybe that didn't work out, and then you had a mediation, and then arbitration or litigation after that, plenty of contracts have a mediation provision or at least a step in them at this point. The last way is that either a court or even in some instances, the arbitral institution mandates that the parties pursue mediation. So there are several benefits to mediating before any papers are filed. And probably the most obvious and the biggest benefit is avoiding sort of perils of litigation process. And this is everything from the expenses involved, to people's time and energy, right? So we all know that regardless of whether the dispute is a commercial one or employment or construction or so forth, the energy that these kind of processes can take out of people is pretty substantial. And the other thing to think about is that mediation really is one of the only dispute resolution processes that has the potential to either repair or heal or maintain relationship between the parties. So to the extent that communications have had a breakdown, or there has been some other fallout in the relationship between the parties, mediation really is a forum where the mediator can help parties to examine that and to fix it on an ongoing basis. And then lastly, and this can be particularly important for many parties is the confidentiality of the process. And particularly when we're contrasting it to a public forum like going to litigation, being able to have negotiations and a conversation in confidence with your counterparties and the mediator is very attractive. Now, there are lots of concerns about mediating too early, right? Parties are often reluctant to mediate early because they feel they don't have enough information, right? So there hasn't been discovery yet. How can I possibly put a value on the case if I don't have the information? So what I would say in response to that is to the extent that you have found a case that looks like the settlement opportunities are certainly more attractive than the litigation or arbitration process, but you feel you don't have access to that kind of information yet, then get to that mediation table. Find your mediator, set the process up, and then let the mediator know that there's information that you need, and that you need them to sort of serve in the capacity as a sort of quasi discovery master, right? So I'm not doing full blown discovery, but if there are certain indiscreet documents that you need, then talk to the mediator about that. And tell them that in order for the process to proceed, you need their help in getting access to that information. And another issue is that proposing mediation early is perceived as a sign of weakness, right? So by proposing to mediate early in the life of a case, people often feel that that's signaling to the other side, that they have a bad case, that they're coming in from a place of weakness. And I have to tell you, I just, I do not buy this at all. As a litigator, as in-house counsel, as a mediator, and I get, you know, maybe I've had my fair share of the mediation Kool-Aid, but there's never been an occasion where I was worried about this. I mean, at the end of the day, if you want to mediate this case and you see that there's a value in it, what difference does it make if they think you're worried, right? If that gets them to the table and they're coming in from a heightened place of confidence, then it becomes the mediator's issue to unravel and not yours. In fact, I think it almost makes the proposition from getting to mediation even more attractive, right? Okay. So what happens when you have a court order of mediation, and how can you make the most of it? So I do this maybe a few times a year, and I can tell you that it's pretty easy to recognize immediately the parties who see this type of a process as a checkbox, and the parties who see this as an opportunity. And people who see it as an opportunity get value out of the process. And really, there are so many benefits to the court, mandating mediation in the early stages of a litigation. Primary among them is court mediation is usually free. Right? So, if not a completely cost-free process, the mediator fees are often free, or at least the mediation at the first few hours of it will be provided by the mediator on a pro bono basis. So that's our first incentive, right? The next is the chances that you are paired through this process with a reputable mediator are pretty high. Most court mediator rosters have a competitive application process that requires mediators to submit references, go through an interview process and so forth. So it takes out that part of the negotiation that requires you to sort of go back and forth with your counterparty as to who the mediator will be. And in fact, often supplies you with somebody who really is an expert in the field. The next is that it forces, right? So this early mediation ordered by the court forces the parties to start thinking about settlement early on in the process. So to the extent that the mediation, right, doesn't settle the case immediately, it at least gets the settlement ball rolling, so to speak. And hopefully, to the extent that that settlement is not achieved at that first session, it's something that the parties now that the conversation has started, can continue to explore so that a full-blown litigation process isn't necessary ultimately. The last benefit here is that a court ordered mediation overcomes the reservations say you might have about proposing mediation, which we talked about a few minutes ago, right? So to the extent that you've identified that this is a case that might be good for mediation, but have those concerns about a sign of weakness or so forth. A court ordering it obviously gets to pass them. So there's not a lot of litigation around what happens in mediation, but this case sort of stands out as one that continues to sort of guide what is sort of required of parties when a court-ordered mediation comes up. So this is a case that was in bankruptcy court over 10 years ago now, and where one of the parties really did not want to participate in the court-ordered mediation. And so subsequent to the mediation, actually closing, the mediator submitted a report to the bankruptcy court, which detailed the allegations of bad faith by this one party. And so the sort of bad faith evidence that was submitted by the mediator included, the party objected to the topics that were going to be covered at the mediation. They demanded to know who was gonna be in attendance at the mediation. Said that mediation is a waste of time. When the date finally came, they sent a junior attorney who didn't have any willingness to compromise, refused to make any settlement offers, excuse me, and then threatened to report bad faith by the mediator. So all in all, a bit of a nightmare. So the bankruptcy court actually issued sanctions against the party and required them to bear the cost of the mediation, including the cost of the mediator and the other party's expenses, right? But the Southern District reversed, finding that the sanctions order was an abuse of discretion by the bankruptcy court. And stated that the party actually had complied with all of the objective requirements of the court mediation order, right? They actually participated in the mediation. Failure to settle at the mediation was not bad faith, the court held, right? The party here was within its rights to enter the mediation with the position, but it wasn't gonna make a settlement offer and it wasn't going to sort of participate in the negotiations. I mean, this is on the one hand sort of a cautionary tale on lost opportunities, I think. I do appreciate that not every case is appropriate for a mediation. But here I think that one of the takeaways is that mediation is the party's process. And if the parties do not wish to pursue this kind of a process, do not wish to mediate, it's not gonna work. So anyway, a cautionary tale that court-ordered mediation, I think that people oftentimes are a bit resistant to it. But I think there are a lot of benefits to it. Most people are not gonna find themselves with sanctions for participating in a kind of lack cluster way, but it's really, I think a lost opportunity and sort of a waste of your time if you don't. Now, the other thing that ironically can cause people to sort of drag their feet again, when it comes to mediation is the clause that they have, right? So a dispute resolution clause can be a bit lackluster when it comes to mediation, if it only allows for that mediation to happen within a limited period of time, and your case needs more time, right? Also, it can be a bit of an issue if you have one of these clauses where there are certain requirements for the mediator, and it's just not feasible to identify this individual within the period of time that you have. And then lastly, sometimes it's just, I think that these types of tiered dispute resolution clauses are often constructed with best intentions, but are sometimes in practice vague and really hard for people to follow. So what do you do if you have one of these problem clauses? Well, you negotiated for it at one point, and you can negotiate for it again, right? So to the extent that you have a case where you really feel that mediation is ripe. The parties can mutually agree to tailor that process to the needs of the dispute at hand, right? Or at least if you can agree to mediate and then bring it a mediator to help set parameters that will work. Another option here, which I think is interesting to consider, right? To the extent that you have worked with some of these tiered dispute resolution clauses. The timing of mediation in these things is sometimes really inflexible, right? And the timeframe within which the mediation has to be initiated and then also finalized is done outside of the context of a specific dispute. So it could be kind of hard to work with, right? So there's this objective when crafting a tiered or a step dispute resolution clause that parties want to get to the mediation table; that that's an important facet of the dispute resolution process. But in practice, these provisions may not actually help us in achieving that goal at an ideal time for each of the disputes that comes up under the agreement. And then the other issue is that requiring mediation as sort of a precursor to arbitration really can or has the potential to prolong the dispute resolution process, if the mediation fails, right? And then the parties believe that their only recourse is to carry on and go to the arbitration and then onto final award from there. So this concurrent mediation and arbitration clause, and you can get a sample provision along with sort of rules and best practices, best practice materials through the CPR Institute for Dispute Resolution, and that's at cpridr.org. So this process is unique because it allows for parallel and ongoing mediation. Which also means that the parties always have the opportunity as they continue to reassess their positions and to explore mutually agreeable solutions, right? With the assistance of the mediator, you're avoiding having that result imposed on you, right? By the arbitral panel. And then finally, just for avoidance of doubt, the neutrals in the two processes are different people. Right? So there's no confusions to the roles since the arbitrator is not going to become involved in the mediation process. So in practice, once an arbitrator, excuse me, once an arbitration is filed, if it contains the concurrent mediation arbitration provision, parties alert the institution. And just quickly, as a side note, parties can certainly contract for this type of a process when the agreement is initially being negotiated to the extent that the parties agree that this is something of interest when a dispute arises, then obviously you can separately agree to tailor the dispute resolution process, or perhaps to sort of revise it by mutual agreement in a new arbitration or concurrent mediation arbitration agreement document. So in practice, if the arbitration is filed and it contains the clause, the parties will alert the institution. And then the institution will inform the arbitrary tribunal once it's constituted that this is the process that will be in play mainly so they're on notice. Now, simultaneously, or sort of within this process, the parties also early on at the initiation of the arbitration, agree on an arbitrator. And to the extent that there are any issues in finding somebody, can sort of look to the institution for a list of folks to consider. So I think it's interesting because by building mediation into the arbitration process through this type of a clause, there's no delay in exploring settlement options. No need for concern by either party that proposing mediation might be some showing of weakness, right? Instead the parties have here contracted to ensure that mediation is a necessary part of the process, and that it will commence at the inception of the arbitration. Now, the clause carries an additional advantage in that any settlement that's reached in mediation can be entered by the tribunal as a consent award. Now, to the extent that mediation doesn't immediately result in a settlement, this type of a clause envisions that the mediator remain engaged in negotiations with the parties, and helps to continue settlement discussions while the arbitration proceeds separately, right? So on its own track. So as the information exchange here, the process develops, for example, parties attain a better understanding of their opponent's case and certainly of their own position. This helps to optimize the opportunity for settlement prior to the award being issued, because the mediator will know the procedural timetable of the arbitration and can strategically schedule mediation sessions with an eye to critical stages at the arbitration. Okay. So now let's talk about what to do when you are the only person who wants to mediate. So there are four strategies for you to consider here. And the first one gets to the sort of convenience of the process. So you can offer to mediate online to minimize any sort of travel inconvenience concerns that your counterparty may have, or concerns over sort of time wasted away from the office. Now, for many of us, online mediation is a really commonplace thing at this point, and really should continue to be leveraged even as travel restrictions ease because it affords the parties so much convenience and the opportunity for cost savings, in terms of saving on time and cost on the travel that was usually involved in actually getting to these mediation sessions. So to the extent that the counterparty feels like it's just too hard to get to mediation right now, then you can offer to do it online. And I will tell you that I think that the value in doing it online and sort of being able to see people in their homes, and to negotiate where everybody is in their own comfort spots, really is a benefit. And I do not see any disadvantages in using an online mediation as opposed to one that's in-person. Okay. So the next strategy relates to the fees associated with the mediation. And particularly the mediator fees, and then any administrative or institutional fees that might be involved in actually getting to the mediation. So you may wish to offer to pay all of the fees of the mediation if it ends in settlement. But that the parties split the fees if you're not able to settle, if you don't achieve closure on that day. So oftentimes I have seen parties offer to cover all of the fees involved in the mediation; mediator fees, right? And in the institution fees. Offering to cover all of those fees in order to get a counterparty to the mediation table. And this can be effective. And I have seen it work. My concern in advising on this is that you want the other people in this negotiation to be as bought into it and invested in it as you are. And so, if they are not literally bought into it and invested in it, then the negotiations may not be sort of as rigorous and they might not be participating as fully as they would if they had actually invested in the mediator fees. So to the extent that someone is dragging their feet and doesn't think that mediation is valuable, say, you know, fine, if we get to mediation and the case settled, then we'll cover all the fees of the mediator. And you've lost nothing there. But to the extent that we get there and we're not able to do it, then we split the fees. So that there is more of an incentive for them to show up to the process and to settle it. The next strategy is to offer to work with any mediator that your counterparty is comfortable with. So to the extent that someone has indicated that they're not interested in mediating at this time, for whatever reason, one response can be, we've identified this case as one that is ripe for mediation. We think it would be really valuable to have a discussion with you alongside a mediator. Why don't you select the mediator with whom you have had good experiences, someone who you like and someone who you trust, and we will be happy to work with that person. And this can be a valuable way to help get people to the mediation table, because it gives them the feeling of a win early in the process. And it's offered by you at no cost to you, right? So it's also sort of a good faith overture to the other party. And it gives them more of a sense of trust and comfort in the mediation process, because they have the ability to identify who is going to be the neutral facilitator for this process. And it's going to be somebody who they already have worked with, who they like and who they trust. Now, a cautionary note here is that as your counterparty is selecting the mediator, you want to make sure that you do your due diligence on this person before you get to the negotiation, so that you have an understanding as to how they approach mediation, how they approach negotiations. It may make sense to have a conversation with the mediator before you get there to have a better understanding of sort of their personality and their approach. Remember that ex parte communications are not an issue when it comes to mediation. So you can certainly do that. And then to speak with the other people on your team in advance of the actual mediation day. So, if the counterparty has picked someone who maybe would not have been your first choice or your 50th choice, then you want to have a plan in place for how to deal with this person and how to give them direction on conducting the negotiations, so that you have sort of a plan B in place if the mediator is not conducting the negotiations in a way that is valuable to you. Usually when you find yourself in a mediation with a mediator who's not sort of being as supportive as you would wish, this also can be an opportunity to sort of work more closely with your counterparties, because you have this opportunity to sort of bond around the fact that you're sort of stuck working with someone who perhaps you won't choose next time. So there are ways to sort of work around it if your counterpart selects the mediator, they're certainly not your first choice or your 10th choice. But the important thing is that you're actually at the table and can conduct those negotiations directly if you need to with the counterparties. The last suggestion here is that in-house counsel can have principle to principle negotiations over the mediation, right? So this means without the assistance of external counsel. So for example, general counsel to general counsel, or people from the different organizations who are of a similar footing and who have knowledge of the dispute. Maybe this type of a conversation arises because your company has a corporate policy to leverage mediation at this stage in the process. And there are plenty of institutions that have these types of policies. Or maybe you're initiating this conversation because you've had plenty of past successes with mediation. And here are the reasons why you'd like to get to the table with your counterparty in order to sort of discuss solutions to the dispute in this type of a forum. So again, sort of having a principle to principle negotiation, an informal conversation which is not necessarily lawyered up, can allow for a more frank discussion about the value of mediation so that you can pursue it going forward. Okay. So next on our agenda is how to find these people, these mediators. And I think it's really important for in-house counsel to be bought into this process for reasons that we'll cover in this section. Oftentimes I see that many of the sort of ideas for who is the best mediator come from the firm. And many times law firms are sort of mediating more often than their clients are, and so have more access to sort of lists of mediators. But at the end of the day, it's your case and it's your money. So deciding on who's the best mediator for your case is something that you should really be intimately involved in. All right. So we'll start and get the negative stuff out of the way first; what to avoid. So the repeat players I think is sort of a big concern. Right? So to the extent that you are mediating or have been mediating and sort of have found somebody or a list of somebody's who you enjoy working with, right? So these are mediators or a mediator who you trust, you like their style, you've had bad experiences with other people, and this is somebody who you wanna work with. Working with the same short list of people all the time or much of the time comes with a couple of issues. The first is that it risks the appearance of a conflict. I would hope that in making the appointment or in making the ask to the mediator, that disclosures would be circulated, and that the other parties that you're working with will see the number of times that you've worked with this individual in the past. Now, this is certainly something that can be waived if the other parties don't think if it is an issue. However, it can also sort of signal, I think, if you're using the same mediator repeatedly, that this is somebody in your pocket and is not somebody who is going to be able to sort of facilitate a truly neutral process. The other thing is that it deprives you of a new perspective. If you're always working with the same short list of mediators or the same person, you know what they're gonna say. And there are thousands of mediators out there. So really working with just this short list of people who I get, you know, you've worked with before and have developed the comfort level, and there's so much value in that, but there's also in value of a huge value, I think, in finding new people. And not think giving those folks opportunities, but also giving yourself the ability to learn from them. Now, the other thing is sort of the carrier pigeon model of mediation. And this is where, and sometimes I think parties look for this. People who are not really engaged in active negotiation process, but who are sort of moving back and forth with offers and demands. And this often happens, I think, when people are not particularly interested in talking about what's going on underneath the money, right? And just more interested in having an exchange of offering demand and consider that to be the mediation process. This really can do more harm and good to any possibility for settlement. So I think that it's a good practice to avoid. And then lastly, it's this sort of bullying model. And this I saw in-house and also as a litigator, you know, mediators who are sort of attempting to sort of bully the parties and see it as an evaluative practice. But really, it's just sort of trying to put pressure on, I think in an inappropriate way for the one party to sort of see things the mediator's way and to do that. This too does more harm than good. And I also felt that particularly as in-house counsel, this person is a vendor, and why invest if you're gonna pay for this? Yeah? All right. So what are we looking for? Right? So the first thing that you need to pay attention to is what your clause requires, right? So go back to the agreement and understand whether there are experiential requirements. There could be language requirements or cultural requirements, depending on the type of contract that the clause is contained within. And then make a determination as to whether these requirements actually suit the needs of the dispute at hand. And if they don't, do you have the ability to have a conversation with your counterparty as to who really is the best mediator? What are the qualities of the best mediator for this dispute? Other considerations are, is a legal background necessary? So, you know, for example, sometimes in the construction industry, people will want someone with a particular technological knowledge to help facilitate those negotiations. Oftentimes if there is a need for somebody with sort of a technical background to facilitate the negotiations, but people are still sort of looking for a lawyer to be a facilitator in those discussions as well, you can have co-mediators, right? So that you have somebody who can help on the technical side of things, but then also someone who has the legal background to support the negotiations as well. And this can be particularly helpful in cases where the issues are complicated, and where you have two mediators who can be working with multiple parties and helping to sort of move things forward at a rate that's a bit quicker, than if you only had the one mediator supporting the dialogue. Sometimes also parties wish to consider, not only whether the person has a legal background, but if they do have a legal background, is it important for someone or for that someone to be a retired judge? Is there any substantive experience that's important for the mediator to possess? Regardless of whether the clause actually sort of lists out the substantive experience or sort of background qualifications that the mediator needs to possess, once the dispute is live, so to speak, it may become apparent to you that you need to have somebody with substantive experience. However, I would say that my one word of question here is that you just wanna make sure that you're not bringing somebody in who has their own sort of preconceptions or understanding the law, that might at the end of the day conflict with yours and make the dialogue a little bit more difficult. So it's just something to sort of consider. And then lastly, don't forget to check for conflicts, of course. And as I mentioned previously, this is an ex parte process, and the mediator is not in a position to make any decisions about what's gonna happen at the end of the day. So to the extent that there are any sort of disclosures, parties can mutually agree to waive any conflicts, just as long as certainly they've been given notice of them. Yeah? Okay. Next is sort of thinking about the style and really the kind of the personality of the mediator. If you've been in a mediation before, you are oftentimes locked in a room with this person for a protracted period of time. And maybe the mediator sort of popping in and out of your room in the caucuses and joint sessions throughout the day, I think you're probably spending a decent amount of time with this person. So it stands to reason that not only do you wanna be able to sort of respect and trust this person, but you wanna like them because you have to spend a lot of time with them, right? So thinking about the style, right? One of the things that often comes up is sort of, what is their negotiation style? Is this person an evaluative mediator? Are they a facilitative mediator? And those are sort of the big styles that come up or some mix of those two. So just quickly by way of background and evaluative mediator is somebody who's gonna kind of lay it on the line for you, right? Give you an evaluation. And rightly or wrongly, this is often something that's connected with people who are coming off the bench and starting a mediation practice. And it can be particularly helpful for parties when they're looking, if the case is already in litigation, for someone neutral to come into the process and to give them an assessment as to the merits or lack thereof involved in their case. A facilitative negotiator is somebody who really is helping to draw the party's underlying interests out in the discussion, asking questions and getting an appreciation for how they can sort of facilitate, right? A dialogue between the parties. So not necessarily giving them their opinion on the case, but giving them the opportunity to explore different facets of the case and different options for disposing of it. Right? If you ask most mediators, I think that they'll say that that their style is some combination of the two. And depending upon where you are in the negotiation process, you most likely will need a mediator who is facilitative at certain points, who is evaluative at other points. As the day progresses and as the confrontation sort of unfolds, those are things that you should expect of somebody who you hire to serve as a mediator. But things to consider at the outset if there's something specific that you're looking to address in the process. You also wanna think about and do research on, and we'll talk about this in a minute, the reputation of the mediator. And do they have requirements for parties to consider? Right? So, do they expect a certain type of mediation statement? Did they themselves have required requirements for the mediation process? And the greatest example here is that there are some mediators who feel really strongly that each process needs to start with a joint session. There are certain mediators who believe that the parties should remain in a joint session throughout the entire day. And then there are other mediators who put people in caucuses in the beginning and then maybe do a joint session afterwards. So these are things to consider, because you'll know sort of the personalities that are involved in this negotiation, and what's desirable for you. Also, you wanna find out if the case doesn't settle, does the mediator do follow up if that settlement isn't reached, are you gonna have to pay for that? Just things to think about. And then lastly, in following our comments or discussion a few minutes ago, does the mediator facilitate processes online and in-person, right? So to the extent that you know that you want to be in-person for this discussion with your counterparties, is that something that the mediator is able to accommodate at this time? So with regards to diversity, I would ask that you take a look at your company's vendor diversity program or law firm diversity initiative, and to think about whether you apply this to the selection of mediators. And you should. These programs are in place for a host of good reasons and need to be applied to the AIR field as well. The mediation profession is probably one of the least diverse areas of the legal profession; which is not saying much. And the issue here isn't that there aren't enough good, diverse mediators out there. The issue is that people need to be selected, right? So when I was in-house, one of my internal clients instructed me when I was helping him to find a mediator in a particular case. He's in the following, somebody like I know what I think already. I need to be in a room with somebody who doesn't look like me and who doesn't think like me, if we are ever gonna settle this case. And I think that that is a really valuable way to look at this mediator selection process. Now, some additional considerations are, what are the mediator fees? If the case is, there's $200,000 in controversy and the mediator fees are $20,000 a day, that's probably out of proportion. So you wanna know what the fees are up front to make sure that the mediator fees are in proportion to the underlying dispute. Having said that, the cost of the mediator is usually pretty diminished as compared to the rest of the process around it. But I also get that that maybe sounds a little bit self-serving coming from a mediator. So we'll move on. Also think about the mediator's schedule, right? So if this person is booking out nine months in advance, are they really that special that you need to wait almost a year in order to get in front of them? Again, there are literally thousands of people out there who are mediating. Do you need to sort of wait that long in order to get in front of somebody? Okay. So how do we find these people, right? Again, look at the clause, right? So are there any requirements that you have to follow in terms of looking at an institutional roster. And here, if the mediation is being facilitated by a particular institution, and for whatever reason, you're unable to find somebody suitable there, the parties can agree to go off list, if you have someone in mind who's not necessarily affiliated with that institution. Again, it's the party's process, you can agree to anything, right? Know that these institutional rosters, some of which are readily available online, others you have to get access by request. You can do searches there by people's names, by their location, by their area of practice. Word of mouth referrals can be really helpful and give you a sense of comfort, particularly in working with somebody new. Again, I would just caution here to be careful not to perpetuate any kind of favoritism or exclusivity in going this route. Do your own independent research, right? So I think that when selecting a mediator, it's not about just looking at the sort of CV that you've received, but sort of looking at all of the other information in the world that is available about these people. And one of the best ways that I always found to do this was in attending conferences and seminars and reading articles, and keeping track of those people that sort of spoke the language that I wanted to hear. All right. So how do you conduct this due diligence? Right? So we've thought about, what are the qualities of a good mediator? What are the different ways that I can find these people? Now, once I've identified a person or a couple of people who look good, how do you figure out if they actually are good? Well, again, you can call them, right? There's no rule against ex parte communications with the mediator. And this happens all of the time. And you can call and ask them sort of about their knowledge of a specific area of the law. You can give them sort of a hypothetical that is similar to the case that you have, and ask if they have mediated things of a similar nature in the past. Don't necessarily get into the specifics, at least not too far before you've selected the mediator. Don't get into too much of the specifics of the case at hand, but you can generally talk, you can certainly talk in a general nature about the type of dispute that's involved here. Also sort of read their articles, right? And get any additional information you can from these writings about their style, their approach to mediation, et cetera. And then if this is somebody who you've seen, right, presenting before, I would say, try to keep track of this in whatever way works for you; sort of the way people speak and present themselves, and the things that they think are important. And whether that's sort of in line with your own priorities and corporate values. And then look at the website, right? Understand how these people present themselves to the world. And certainly, certainly, certainly, Google them, right? Never skip this stop, it's so important. There's so much information that comes off running a Google search on somebody. Okay. So next we're gonna talk about a pre-mediation negotiation plan and why that is important. So first, a negotiation plan is something that really should be developed by the individual parties and the mediator, while in advance of the mediation itself. And why do you do that? Because it gives you sort of more clarity on what you wanna accomplish, right? So that you have some certainty around what is really important in this negotiation. It also helps you to develop a better appreciation for the other side's perspective, right? And then you create a roadmap for the discussion. Now, knowing that that roadmap will likely evolve, right? This is a fluid process. You're certainly not scripting the negotiation, but you can go into it with a sense of what's really important to you and why. So from my perspective, the elements of a negotiation plan that are important to include are first, you list your goals for the negotiation, and why do you need to have this meeting? What do you hope to walk away with at the end of the session? Oftentimes, I will ask parties before they even arrive at the mediation, to individually, not necessarily write a settlement agreement, but to write a memorandum of understanding that they would hope to walk away with. Knowing, right, that your counterparties are also doing that and theirs will be completely different. So, your sort of dream memorandum of understanding will also evolve over time. For each goal you identify, list the respective strengths and weaknesses in your position. And then once you've completed this activity, just circle back and do it again from your counterparty's perspective. So few people do this. And it is such an important part of the negotiation planning process. This is a collaborative discussion, and you need to appreciate where the other people in this collaboration are coming from. A few other things to think about as you're planning are all of the necessary people involved in the discussion. And if they're not, who's missing and how are you gonna bring them into the discussion. Also think about whether you need to put an offer on the table before the mediation begins. Or conversely if you haven't received a demand, do you need to enlist the mediator's help in securing this before the mediation actually starts. A few words of caution. One of the biggest mistakes parties make in mediation is neglecting to consider the other side of the argument in advance of the discussion. This is so important because it really, it can help you to identify potential areas of agreement, of where it might make sense for you to start the discussion. It can help you to develop empathy for people who maybe you don't like, but who you need to work with. And being able to demonstrate this can go a long way in the success of the discussion. Again, as I said, mediation is a collaborative process. And the ability for you to show to the other people that you've actually thought about their position, and that it is important to you, whether you agree with it or not, is really helpful to the negotiation process. Now, the other thing to remember is that if you approach the negotiation as sort of, or the mediation as a corollary to your litigation strategy, I would not expect any settlement. So if the mediation becomes sort of a mini-litigation process, and this does happen often, it's going to make the negotiation success that much harder to achieve. So now, lastly, let's talk about the initial convening call that the mediator will arrange for. And this is in order to sort of set yourselves up for the process and to make agreement on sort of some of the administrative factors involved. So initially, or excuse me, soon after the mediator is selected and your negotiation planning has hopefully started, the mediator will schedule a call and set the expectations for the process ahead. Right? So some of the initial things that need to be included here are you may be asked to, during the call, you may be asked to provide a brief statement of your claim, explain the negotiation history and any issues that you think are important for the mediator to know at this early stage in the mediation process. Beyond that the mediator will probably also explore again, do we have all necessary parties in attendance? Do those parties have settlement authority, right? What is the best venue and schedule for the mediation? Make a statement on the confidentiality of the process. And then the media will sort of take all of this into consideration and use it to create a mediation agreement for all of the parties to sign before the process properly gets underway. Okay. So this brings us to the conclusion of the course, and for our opportunity to do a quick review before closing out. So my overarching message in constructing this class for you is that mediation is the party's process. It's not the mediator's process and it's not the law firm's process. At the end of the day, it is the parties who will have to agree on sort of whether to pursue mediation, in what form, and whether settlement is achieved. And so it makes sense for in-house council to be really involved in the construction of the mediation from the ground up. So first, in determining the best time for mediation, in my experience, the earlier you can get to that conversation, the better. And to the extent that the initial mediation conversation does not result in settlement, and I said this before I was a mediator, I suppose I still say it now, but I saying it before, maybe held a little bit more credibility for you all. I never attended a mediation that did not have some value. Regardless of whether settlement was achieved or not, you always walk away with more information about the other side, about the relative strengths and weaknesses of your case and their case, and really, the opportunity to create a better path for continuing to think about settlement going forward. In order for this, any of this to happen, obviously, you have to have a strategy for getting other people to that table to the extent that they have reservations about mediation. And so whether that is helping to sort of cover the fees or giving your counterparties the opportunity to select the mediator, you know, there are a host of ways that you can get people to the table. And I think that it's really important to sort of think those things through. And once you get to the table, there's maybe a little bit more for the mediator to unfold, but certainly that's what you've hired them for. In terms of mediator selection, the most important things I think to remember are looking for new people and being conscious of the need, excuse me, to diversify the pool of individuals that you're used to working with. In advance of any mediation, make a plan. I can always tell how much planning has gone into people's process before the mediation happens. This is not just drafting a mediation statement for the mediator. It's really thinking through, where not only you are coming from and what you hope to accomplish, but the other people who are involved in this discussion as well. And then lastly, in terms of repairing for the convening call with the mediator, remember that this is a collaborative process. And when you're given that opportunity at the beginning to make a brief presentation, this is not the time for sort of argument or position statements. It's really your opportunity to put forth a good faith statement on your hopes and sort of plans for the mediation process. And also with regards to sort of preparing for the negotiation and then participating in the pre-mediation convening, it's also your opportunity to sort of express any kind of process needs that you have around the mediation in terms of joint sessions, in terms of mediation statements and ex parte communications with the mediator. So these are all sort of things that you need to consider as a case is sort of winding its way over to the mediation process, in order to set yourself up for a successful negotiation sort of experience and then outcome. So thanks so much for registering for the course, and I hope it was helpful to you.
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On demand
1h 1m 19s

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