The Keys To A Productive Mediation ... From The Mediators Themselves  Lawyers Weekly Asks ADR Professionals To Recall What Has Bolstered Or Buried An Attorney's Case At Mediation  By Jeanne Greeley

Some mediation sessions come to a grinding halt with frustrated attorneys at an impasse throwing their hands in the air. Others take hours of intense negotiations to bridge a gap between parties on the brink of a stalemate. And some, of course, wrap up with a conciliatory handshake and a deal that somehow leaves everyone satisfied. 

So what determines whether a mediation session is a stunning success or an utter failure? 

Alternative dispute resolution professionals in Massachusetts say success results from a myriad of factors ranging from intense preparation to letting your guard down at the mediation table to checking your ego at the door. 

But there are also some textbook stumbling blocks that lawyers should be aware of when entering mediation — a practice that lawyers say is as popular as ever as jury verdicts grow increasingly risky and unpredictable. 

Lawyers Weekly tracked down several ADR experts to tap their knowledge on what has worked for attorneys at mediations — and what has blown up in their face. What follows is a collection of their observations drawn from years of experience at the mediation table. 


Preparing For A Mediation 


Though some attorneys may get sweaty-palmed about the prospect of an across-the-table showdown with their opponent during mediation, ADR professionals say the more important thing for them to worry about is the work that goes into the case before the mediation. 

Improperly valuing the case, not keeping the mediator well informed and not sharing all the pertinent details of the case with opposing counsel are roadblocks attorneys can run into before they're even out of the gate, according to neutrals contacted by Lawyers Weekly. 

One thing several mediators suggest is for both attorneys to plan a conference call with the mediator about one month prior to their scheduled session to discuss what materials the parties plan to send the mediator. 

Retired Superior Court Judge John M. Xifaras, a mediator affiliated with JAMS, says attorneys should supply the mediator with a packet similar to a pre-trial memorandum before the session. Included in the materials should be any precedent-setting cases that involve fact patterns similar to their cases, Appeals Court or Supreme Judicial Court decisions on similar cases, and applicable statutes. 

For example, if an employment case involves wage and hour laws, having a statute already in hand will allow the mediator to make an educated decision. 

Additionally, attorneys should have some evidence as to how they're coming up with their demand, mediators advise. This can be in the form of jury studies performed in the state or results of verdicts from the same jurisdiction in which the case would be tried. 

In addition to keeping the mediator well-informed, attorneys should ensure that opposing counsel is knowledgeable about the case, say neutrals. Unlike preparing for a trial, where attorneys might have "secret weapons" up their sleeves to spring on their opponent, mediation is a time to lay everything on the table, mediators say. Being well informed about the case often allows the defense to explain the facts to their client and come up with the most reasonable offer. 

"Those who give the most thorough documentation to the other side do best at mediation," says attorney Christopher P. Kauders of Pre-Trial Solutions in Boston. "You can't just pound the table and say you want something without giving the other side documentation that justifies it so that they can explain it to their superiors." 

Retired Superior Court Judge-turned-mediator Lawrence D. Shubow concurs, saying matter of factly, "If you've got this powerful card to play, lay it on the table. You might be given some credit for your honesty." 

Attorney Fredric A. Swartz of Boston, who estimates he's represented clients in more than 100 mediations, notes that attorneys should prepare a "mediation memorandum" for opposing counsel. These are more extensive than pre-trial memoranda, he says, and should include the facts of the plaintiff's case, evidence they expect to introduce at trial, a detailed explanation of damages, and even a demand, Swartz suggests. 

The defense counsel, in turn, should include in the mediation memo the strengths of their case and how they intend to dispute liability, the findings of an expert's report and some significant deposition testimony, Swartz adds. 

"I think that if you go to mediation you have to be prepared to put everything on the table," says Swartz. "Because what's the sense of fooling around?" 

Charles Doran of Mediation Works Inc. in Boston recommends that (prior to mediation), rather than creating position statements like the parties would for trial, that they create "interest statements." 

Interest statements go beyond simply a monetary demand and can include things like accommodations from an employer, a wish from the defendant to keep the agreement confidential or terms from a business partner to continue the relationship after the case settles. According to Doran, satisfying a party's interests as opposed to their demands can often lead to more durable agreements. 

But even with all these bases covered, a mediation session might still go awry if attorneys don't prepare the most important element of their case: the client. 


Preparing Your Client


Mediation can be an unsettling time for a client, as they are often forced to re-live the experience that landed them there in the first place — and might also be facing their opponent for the first time. 

However, attorneys can quell some of that anxiety and fear, according to ADR professionals, by thoroughly explaining mediation to their clients and providing them with realistic expectations. This can mean everything from telling them how to dress to explaining how long it could take to reach a settlement to describing how attorneys interact during mediation. 

"I think the hardest thing is calming your client down and keeping them knowledgeable about what's going on because in a serious case this client is going in there and this client has been either physically or psychologically traumatized by a tragic accident," Swartz says. 

After all, attorneys have to keep in mind that no matter how well they think the session is going, the client is the one who has to bless the settlement at the end of the day. 

One of the worst mistakes an attorney can make is to give their client the impression that the case is worth more than it really is without having an offer to back that up, say some mediators and attorneys. 

"You don't want your client thinking they've got a $10 million case when you're looking for a $10,000 settlement," says attorney Swartz. "You don't want to surprise your own client." 

Paul A. Finn of Commonwealth Mediation & Conciliation says attorneys should go even one step further and lower their client's expectations. 

"Don't paint too rosy a picture and don't lock yourself into a certain set number," he suggests. "Clients are inherently suspicious anyway, so paint as bleak a picture as you possibly can so that if it comes out better than their expectations, you're going to look like a champion." 

According to Sarah E. Worley of Pre-Trial Solutions, it is also crucial for attorneys to explain to their clients that mediation is a place where attorneys are expected to be more cordial and less adversarial toward their opponents. Without stating this at the outset, a client might feel as if the attorneys are in "collusion," she says. 

"If a client observes their attorney being professional and controlled ... that's not a sign of weakness and it's not a sign that the attorney is failing to do their job professionally," says Worley. "They need to understand that that is a professional courtesy that we are almost required to afford to one another." 

Since mediation can take a long time, especially if there are multiple defendants, it is also important to explain the pace of mediation to clients, say ADR professionals. Mediations that span hours or even a full day are often the norm and can mean progress is being made — and lawyers should so inform their clients. 

Experts further advise that it is important for attorneys to emotionally prepare their clients since a mediation session might be the first time the individual is rehashing the underlying issues of the case or the first time they are seeing their opponents. While accounts from other parties to the case might provoke a response or outburst from a client, they should be warned against such behavior. 

"The most effective thing an attorney can tell their client is if someone says something that you don't agree with or that offends you or upsets you, don't say anything and tell me when we meet privately," Worley says. 

Emotion, she adds, "can derail any mediation because people who want revenge, people who want vengeance [or] people who want a pound of flesh will often be left with having to get that from the court." 


Common Stumbling Blocks


So you've got your case in solid shape and your client is fully briefed on what to expect at the mediation. You arrive promptly and with confidence at the session only to realize that, unfortunately, your case is going nowhere that day because you've come without a key decision maker in tow. 

It's one of the biggest pitfalls of a mediation session, say ADR professionals — arriving without a claims adjuster from the insurance company, the corporate CEO or another client who will ultimately decide whether to accept a settlement. 

Another way to foil a mediation, according to mediators, is to spring crucial information on opposing counsel the day of the session. Worley uses a fictitious example of a tort case involving a broken leg where a plaintiff's attorney suddenly informs opposing counsel that the plaintiff recently had two surgeries amounting to $150,000, and that she can no longer work. 

"That scenario is very different from 'My client broke her leg,' and that is the kind of surprise ... where the defense attorney is going to say 'What do you want me to do now?'" Often, she adds, there's nothing the defense counsel can do — especially if multiple parties are involved — because they haven't been granted the authority to make a decision based on these new facts. 

Introducing new terms for a settlement or changing an offer late in the mediation can also send the session into a tailspin, mediators say. For example, in an emotional wrongful termination case, lawyers should not insist at the last minute that their client also wants the agreement to be confidential, or that they want the employee to return equipment that was given to them on the job, Xifaras recommends. 

"They're minor things, but they can disrupt the process," he says. "When you're involved in negotiations, put whatever your proposal is in its entirety. Don't do it in stages." 

Asked if money can be the sole factor that derails a mediation session, industry sources differ in their opinions. Some claim mediation is less about the price tag of the case and more about meeting the client's personal or emotional needs. 

"I think that an effective mediator understands that when [clients] say it's about the money, it's not about the money," says Doran of Mediation Works Inc. "If it was just about the math, you just whip out a calculator and work out the math. But tied to a dollar amount are egos ... feelings of betrayal, feelings of loss, and I think it's not so much just feelings, but it's rather these experiences tied to the dollar amount [that] creates stalemates." 

But other ADR professionals, especially those who deal with common torts like personal injury, medical malpractice and products liability cases, say the parties wouldn't be at mediation if it weren't about the money. 

"Isn't that what you're after?" asks Commonwealth Mediation's Finn. "You can't get anything else. They're not going to take the defendant out and horsewhip him. The hand of god is not going to come into the courtroom and throttle the defendant." 

And mediators claim that unreasonable demands from one party or a dogged client refusing to budge on his offer can single-handedly short-circuit a mediation. To pre-empt this type of standoff during a mediation, Finn says he requires the plaintiff to arrive with an offer from the defense — it's their "price of admission," he adds. That way, both parties enter the mediation session with an idea of where the middle ground might be. 

Though some lawyers might think it a wise strategy to "low-ball" offers to their opponent, or to introduce an astronomical demand hoping that this will eventually yield a higher award, mediators say this is bad bargaining. 

"I think the advice that needs to be spread is be realistic because to make an absurd offer or absurd demand may harden the process beyond repair," Shubow says. 

If the parties find themselves at an impasse, they might want to consider asking the mediator for an independent evaluation of the case, some suggest. When presented to the client, this evaluation might hold more weight than the opinion of opposing counsel. Attorneys might also want to ask the mediator in what range they have been settling similar cases in order to ground each party's expectations. 


Think Outside The Box


For those cases that do require more than just a dollar sign, mediators say attorneys need to be receptive to alternative solutions for their clients. 

Doran offers an example from an employment discrimination case he recently handled where the party settled the case for one-sixth the amount of the original demand by offering accommodations to the employee — an overweight man who was more satisfied that his employer was willing to install loveseats in the employee lounge than he was in the financials of the case. 

"It goes beyond just a take-it-or-leave-it scenario to allowing the parties to create value together," says Doran, "which means instead of just dividing up the pie, they expand the pie." 

Doran adds that when the parties devise their own alternative solutions, it can often strengthen the agreement. 

"When the solutions come from the parties themselves, the chance of compliance and the durability of the agreement is strengthened many times over because it's their agreement," he claims. "It's not like it was imposed on them." 

Attorney Eric Van Loon of JAMS says he recently handled a dispute between the landlord and tenant of a large manufacturing facility on Route 2, where equipment was damaged due to a leaky roof. One clause and one comma in the contract stood to deadlock the mediation, according to Van Loon, because the parties could not agree on who would pay for repairs. But the case settled after a brainstorming session where attorneys got the parties to agree that the landlord would allow the tenant to purchase the property. 

It was "a complete outside-the-box, non-legal remedy," says Van Loon, "the kind of thing no court could ever have done." 

Attorneys also need to keep in mind that, especially in business cases, the parties are often more interested in protecting their reputations or continuing to have a profitable relationship with their opponent than they are with shelling out the cash. 

Shubow says that was the case once when he handled a matter involving a company that allegedly sold damaged pre-fabricated materials to a builder. The case ultimately settled for a "very minor" amount of money, but more importantly, he says, the parties maintained their business relationship. 

All of these examples illustrate how important it is for attorneys to adjust their attitudes for mediation. Because, mediators stress, the objectives of mediation and a courtroom trial are contrary to one another. 

"In a courtroom you want to convince a neutral third party that you're right and the other side is wrong … so as an inherent part of that you say a lot of negative things about that other party," Van Loon says. 

Conversely, in a mediation session, attorneys need to be more cordial and respectful of the opposing party, keeping in mind that they are ultimately hoping to persuade them — either to give more or accept less. 

This calm demeanor can often be difficult to maintain, mediators say, because the attorneys have endured years of litigation and feelings of bitterness have been sparked. Even so, attorneys must keep their egos in check and not treat the mediation as a personal vendetta with opposing counsel. 

"[N]ice guys do do better in negotiations as long as they're perceived as being able to try a good case," Kauders, of Pre-Trial Solutions, says. "The other side will cut you more slack if you're being respectful of them." 

Keep in mind, ADR professionals caution, that clients might not be aware of the years of contentious back-and-forth battles that have occurred between the attorneys. If these surface during mediation, it could cast you in a negative light in front of your client. 

Rather than being pompous, mediators suggest that attorneys adopt the extreme opposite approach when dealing with opposing counsel. Commending the other attorney on his efforts to settle the case can often curry favor and help seal the deal. 

Kauders had this happen in a case where the parties had spent hours trying to settle a case, and it looked as if it might deadlock. Rather than throwing up her hands, plaintiff's counsel congratulated her opponent on their progress and suggested setting up a phone call with opposing counsel in a week to try and wrap up the case. 

"By making the other side feel good about what they had accomplished, they really wanted to finish the project," he notes. "And she just as easily could have sounded a note of frustration and failure." 

Questions or comments may be directed to the writer at jgreeley@lawyersweekly.com.

 

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