The Better Chancery Practice Blog

This is the finale of the series on Mediation by Don Dornan. Jr., of Biloxi.

CONCLUSION

When an agreement is reached through mediation, the parties feel a sense of relief on one hand and a degree of satisfaction on the other. This is because they have actively participated in crafting the solution to their dispute. Even if a party has some misgivings, this feeling usually evaporates over time, resulting in overall satisfaction with the process. Because there are no losers in mediation, no stigma is created because the parties crafted their own agreement with the assistance of the mediator.

Not every case can be settled to the satisfaction of lawyers representing Plaintiffs or Defendants. However, the best achievable settlement can be realized through effective use of the mediation process.

__________________________________________________________________

Many thanks to Mr. Dornan for allowing us to benefit from his work here on the blog. I hope you will find it useful. I know that from his tips and those in Lydia Quarles’ series, I have gained a better understanding of the ways to approach, prepare for, and operate during mediation. The benefits to litigants can be substantial.

This is Part V of the series on Mediation by Don Dornan. Jr., of Biloxi.

GETTING PARTIES TO SAY “YES”

Because the mediator is neutral and has no interest in the ultimate outcome of the case, he lacks the authority to force one party or the other to settle the case if it is not believed to be in that party’s best interests. Likewise, armtwisting, threats and intimidation by the mediator ring hollow because the mediator is without any adjudicatory authority over the case. He cannot admit or exclude evidence, compel discovery or grant summary judgment. Thus, it is the mediator’s effective use of the mediation process which most often brings the parties to agreement on terms which are mutually acceptable.

Some of the methods and techniques which have proven successful in changing attitudes and reassessing expectations:

Reversal of Roles – Sometimes the mediator will ask the lawyers to exchange roles in the case and make the other lawyer’s best argument. Follow up questions such as “If you were representing the other side, how would your evaluation change?” and “If you were representing the other side, how would you evaluate your witnesses?” can bring about a relaxation of the party’s viewpoint.

Correct Misunderstood Facts and Law – If a party’s evaluation of the case is clearly based on a misapprehension of a material fact or the applicable law, the mediator can often break a logjam by diplomatically clearing up the misperception in a balanced and inoffensive manner.

Best Case Scenario/Worse Case Scenario – Asking each side to articulate their best scenario and their worse case scenario often permits the litigants to see more clearly the wide range of potential outcomes by illustrating the best and worst that may happen if the mediation falls through. This approach can also add perspective to the other party’s last offer.

Take a Time Out – Sometimes having the parties take a break from mediation in the same room can break tension which builds up over a long day of negotiations. The mediator may encourage conversation on any topic other than the case. Likewise, taking a lunch or dinner break and reconvening often relaxes the participants and soothes emotions.

Confidential Disclosure of Bottom Line – If both parties will agree, this procedure can at least inform the mediator as to whether a gap between the respective negotiating positions can be closed. This approach normally should only be employed later in the negotiation process. With the agreement of both parties, each side confidentially discloses their bottom line settlement figure to the mediator. If the figures coincide, there is a settlement. If they overlap, the parties agree in advance that the case will be settled at the mid-point between the overlapping figures. If the figures do not coincide or overlap, they remain confidential and the parties remain at their prior negotiating positions. The obvious drawbacks to this approach are that it depends on the willingness of the parties to divulge their true bottom line figures to the mediator and on the integrity of the mediator in maintaining the confidentiality of this information.

Bracketing – Impasse can sometimes be broken through the technique of bracketing. In this approach, a party may send a message to the other side through the mediator such as, “We will move to $X if you will move to $Y.” There are risks in employing this technique. For example, if the opponent’s response is simply to decline the invitation, without more, the offering party has revealed a willingness to move to $X and gained neither a counteroffer nor any meaningful information about the opponent’s next move. Parties rarely agree to the conditions of a bracketed offer. Usually, the best that can be hoped for is a response such as, “We won’t move to $X, but if you will move to $A, we will come to $B.”

Attrition – The mediation process can continue for long hours and sometimes this promotes resolution. The parties can be vulnerable to mental and emotional fatigue. Ocasionally, a party’s strategy may simply be to wear down the other side’s resolve. Although the fatigue factor can sometimes result in agreement, the mediator must be careful to insure that any final agreement is entered into with the full knowledge and understanding of the parties.

This is Part IV of the series on Mediation by Don Dornan. Jr., of Biloxi.

Acknowledge the Weaknesses in Your Case

Mediation is a process which requires a candid self-examination of the client’s case. Mediators will frequently demand that counsel admit those weaknesses in the presence of the client. Credibility may be lost if weaknesses are not acknowledged, at least in the private sessions with the mediator. When the client hears the attorney acknowledge a weakness, it often vicariously allows the client to acknowledge it as well. Often, attorneys are reluctant to admit weaknesses while the client is present. Instead they may stretch for arguments to support less tenable positions or attempt to avoid the issue entirely. Good mediators, however, are able to smoke out such bluffing and evasive answers.

Substantiate Your Position to the Opposing Party

Often lawyers assume prior to mediation that the facts of the case are clear or that the evidence is undisputed. This is a mistake which can be avoided. In advance of the mediation, be sure you have all of the evidence necessary to establish your claims or defenses. Evaluate the strength of the evidence on each element for credibility, reliability and accuracy. Then, be sure the opposing party is provided with documentation supporting your position. It is fundamental to any negotiation that the opposing party have all the information necessary to understand and evaluate your position. Too often, attorneys wait until the mediation is imminent to provide evidentiary materials to the opposing party. In personal injury cases, medical expenses, hospital records, economic reports and life care plans are of no value if they have not been provided to the other party sufficiently in advance for review by those who will make the ultimate decision on settlement.

Anticipate challenges to the accuracy of your evidence by the opposing party and bolster your case, if necessary, in advance of mediation. This will help prevent the other side from arguing that facts which are actually established or irrefutable are in dispute, a common mediation technique.

This is Part III of the series on Mediation by Don Dornan. Jr., of Biloxi.

Develop a Strategy

Attorneys who have consistently achieved good results in mediation have followed at least two rules. First, they have made a realistic evaluation of the potential settlement and verdict ranges of their case, along with the risks of proceeding to trial, and will have discussed them fully with their client. Additionally, successful attorneys devise a negotiation strategy similar to a game plan which will help them reach their objective. A cogent discussion of the risks and ramifications of trial and other potential weaknesses will be critical to establishment of a realistic mutual goal.

For example, the client’s confidence in his lawyer can be adversely impacted if he learns for the first time during mediation of some risk, such as summary judgment or punitive damages, which was not explained to him earlier. An experienced mediator is likely to ask about these issues. Therefore, the lawyer is well advised to have the client prepared for and read to discuss all potential pitfalls.

The mediation game plan should be planned in advance yet be flexible enough to account for the opponent’s actions. Preparing the client and obtaining sufficient settlement authority are important aspects of the overall strategy. Access to the client and lines of communication to other persons with authority should be established in advance.

Be Punctual, Courteous and Attentive

The mediation date is an important event in the life of any lawsuit. It should be treated with the same level of importance as a court hearing. Lawyers and their clients should be on time for the mediation. Tardiness and last minute scheduling conflicts are poor excuses and do not enhance the credibility of the lawyer or the case. Nothing gets a mediation off to a poorer start than for the lawyer to be late while his client sits patiently awaiting his arrival. In addition to being unprofessional, tardiness rarely promotes resolution.

The Joint Session

A typical mediation begins with a joint meeting of all participants presided over by the mediator. The mediator usually delivers a brief preamble and overview of the mediation process and secures a commitment to proceed from the parties. The mediator will customarily invite each party to make an opening statement or position statement. This is the time when counsel are allowed to set forth a summary of the case and their position on the disputed issues. Because all participants are present, the position statements are delivered to a captive audience which is obligated to listen quietly to the other side’s arguments.

Some lawyers are reluctant to submit their clients to a joint session for fear that the opponent’s opening statement will inflame the client and make compromise more difficult. This viewpoint is usually inaccurate. The joint session and opening statements are almost always useful or at least not counterproductive.

Beyond disclosing each side’s position, the joint session has the following advantages:

It identifies the issues which are in dispute and those which are undisputed.

It allows clients to hear the other side’s position for themselves. While they will not likely agree with what they hear, the opponent’s position will be confirmed in the mind of the client. This helps underscore the uncertainty of litigation which must be acknowledged in order for the client to make meaningful compromises.

It can encourage parties to ventilate and begin the process of emotional runoff which will hopefully translate into a willingness to compromise.

Listening to the opponent’s position statement introduces the client to the reality of a contested adversarial proceeding and provides a preview of the trial.

This is Part II of the series on Mediation by Don Dornan. Jr., of Biloxi.

Avoid Mediation When Your Client is not Seriously Interested in Resolution

If the facts of the case are such that you are certain to prevail, there is probably no reason to mediate, absent court order. Likewise, mediation will not likely succeed unless both parties are committed to the process. If your client is not committed to resolution, it will be difficult to achieve a successful settlement. When this occurs, the lawyer should not encourage mediation nor allow the opposing party to gain misplaced optimism that a mediated settlement is likely. Often, lawyers and their clients agree to mediation knowing that there is little chance of success. When this occurs, lawyer and client both run the risk of damaged credibility with the opposing lawyer and the mediator when the mediation proves fruitless.

Don’t be Afraid of Your Own Client

Before the mediation, all aspects of the mediation process should be explained to the client. The lawyer’s evaluation of the claims and defenses should be laid out for the client in a reality-based fashion. The client should be encouraged to listen closely to the lawyer’s assessment and to acknowledge the strengths and weaknesses of his case. At the same time, the pre-mediation meeting will afford the client an opportunity to express his feelings and ventilate, if necessary. The adroit lawyer will provide an empathetic ear and reinforce his confidence in the client while administering a dose of reality about the case.

The client can be the best piece of evidence in the attorney’s arsenal even though the mediation is informal and non-binding. A credible and impressive client at mediation is just that – a credible and impressive client. However, the opposite is also true. While it may not be tactful to broach this directly with the client, a poorly performing client is a factor which should be taken into account in the evaluation of the case.

It is the responsibility of the lawyer to explain the mediation process to the client. The goal here is to enhance the client’s ability to understand what is happening as the mediation unfolds. The client should be prepared to answer questions from the mediator clearly, concisely and without hesitation. The client should also be prepared to deal with an effective opposing attorney who addresses his opening remarks to the client rather than to the mediator. Here, the client’s body language and appearance are more important than any words which may be spoken.

Don’t be afraid to advise the client of the other party’s position and the fact that the client may feel threatened, criticized or intimidated during the joint session. Explain to the client that the opposing party will not agree with his position on disputed issues and that the client may be angered at the opposing lawyer’s position statements. Such statements should not be internalized nor allowed to create emotional barriers to compromise. Clients are better served when they are prepared in advance for negative information.

Prior to the mediation, explore with your client the process of negotiation. The idea that settlement requires negotiation and negotiation requires compromise should be explained and encouraged.

This is Part I of the series on mediation by Don Dornan, Jr. of Biloxi.

MAKING AN OFFER THEY CAN’T REFUSE

Why Mediation?

There are overcrowded dockets in many of Mississippi’s Circuit and Chancery Court Districts. In the more populous counties, the time interval from filing to trial date can often be many months. The uncertainties of full dockets, motions under advisement and trial resettings frustrate litigants. These factors operate on both plaintiffs and defendants. Mediation offers parties an immediate forum and process which focuses on the strengths and weaknesses of the case and provides an opportunity to avoid the transactional costs of litigation and the uncertainties of trial.

Attorneys and judges have come to realize that approximately 90% of civil cases are settled at some point in the litigation process. They have learned that the mediation process creates a focus by the parties not previously achieved through routine discovery. This direct focus on strengths and weaknesses promotes resolution. Even when a mediation is unsuccessful, valuable information about the opposing party’s evidence, legal arguments and strategy is often gleaned.

Become Proficient Representing Clients in Mediation

If, as posited above, mediation has become a recognized and entrenched process for resolving litigated disputes, lawyers representing plaintiffs and defendants are well advised to expand their knowledge and understanding of the mediation process. In mediation, lawyers are tasked with the role and responsibility of obtaining the best result for their clients. However, in mediation, the lawyer’s role is unique in that he acts as an advocate and a negotiator. Recognizing these dual roles and refining a lawyer’s skills in each area are keys to successfully representing clients in mediation.

Lawyers who are successful in “making an offer they can’t refuse” have learned to embrace the mediation process. They know to develop a clear strategy and objectives with the client and how to utilize negotiation techniques intrinsic to the process.

Thanks to Lydia Quarles for providing the thoughtful series over the past week focusing on successful mediation in domestic cases.

My hope is that you will take Lydia’s insights and use them as a springboard to explore ways to maximize success with mediation in domestic litigation.

There is no issue that can not be resolved by agreement if there are imaginative lawyers advising clients who come to the process with good will and flexibility. We older lawyers are familiar with the maxim that “child custody is the one issue that can not be settled,” but with joint custody and increasingly liberal visitation, coupled with ever-greater mobility, even that issue can be mediated successfully. There is no reason why equitable distribution, alimony, child support, visitation, and even attorney’s fees can not be dealt with the same way.

Next month we’ll take another look at mediation with practical tips from attorney Donald C. Dornan of Biloxi.