Navigating the Mediation Process: Tips for Young Lawyers (and New Lawyers too)
As negotiated settlement is now the primary process for resolving cases,the following article, co-authored by JAG Arbiter Susan Macey with Law Clerk Arax Corn, offers practical mediation “do’s and don’ts” for the young (and not so young) lawyer in the areas of mediator selection, preparing for the mediation, conduct during the mediation, and other logistical considerations.
Whether the young lawyer will use mediation in his or her practice is not the issue – the extent to which a young lawyer experiences mediation is more relevant, as mediation has become as basic to the dispute resolution process in litigation as the trial itself. A negotiated settlement is the primary process for resolving cases – only 3% of civil cases in state courts go to trial. Notwithstanding this statistic, law school curriculums emphasize evidence and trial advocacy, with students spending hours memorizing black letter law and practicing killer cross-exam strategies – while less focus and training is given to negotiation skills and problem-solving techniques, as alternative dispute resolution is consigned to elective course status. Thus, the concentration in law school seems to not mirror the reality of a law practice in 2012.
Fortunately, even without adequate training in law school, the young lawyer can expand his or her knowledge regarding negotiation and mediation. These skills are best learned if the young lawyer can: engage in independent reading, observe mediations in person, gain actual experience in a mediation setting, and eventually master problem-solving techniques – allowing the lawyer to be just as successful as he or she would be in conducting effective depositions or crafting winning jury arguments. Successful negotiations involve understanding problem-solving as well as mastering these three basic practice “tips”:
- Learn how to communicate: this involves “listening” in addition to talking.
- Present realistic proposals.
- Make disciplined concessions.
A comprehensive guide to negotiation skills and strategies is beyond the scope of this article. Instead, the article offers practical “do’s and don’ts” for the young (and not so young) lawyer.
A note about terminology:
Although Colorado statutory definitions draw a distinction between “mediation” and “settlement conference,” in the actual practice of dispute resolution, the two terms are often used interchangeably. Depending on who is conducting the process, the settlement discussions may be more facilitative or more directive. That said, it is instructive to provide the definitions here as they are stated in current Colorado law.
Mediation “means an intervention in dispute negotiations by a trained neutral third party with the purpose of assisting the parties to reach their own solution.” CRS § 13-22-302(2.4).
Settlement conference “means an informal assessment and negotiation session conducted by a legal professional who hears both sides of the case and may advise the parties on the law and precedent relating to the dispute and suggest a settlement.” CRS § 13-22-302(7).
How should one select a mediator?
1) Select the mediator carefully
Selection of the right mediator for the right case and the right parties affects the mediation outcome, in some cases dramatically. Mediators are most often selected by agreement of the parties, and a lawyer may be unfamiliar with the names of mediators suggested by opposing counsel. Lawyers should become acquainted with mediation resources available in their geographic location or practice area – approaching this like any other situation where information will aid strategic decision-making: talk to a mentor, ask someone in the lawyer’s law firm, or contact the bar association to inquire about a specific mediator. Hearing a person’s experience with a particular mediator is helpful, but temper any comments with the recognition that not all unfavorable outcomes can be attributed to the work of the mediator.
2) Independently research a mediator’s background, experience, and mediation style
Once the mediator is selected, the lawyer should continue to gather information about the mediator and the mediation process. Find out such things as:
- What is the mediator’s style?
- What information is the mediator expecting from the lawyer?
- Specifically, what information should be included in the confidential mediation statement or “pocket brief?
- Will the information be confidential or will it be shared with the other side?
- What happens after the mediation?
- Does the mediator draft the mediated agreement?
- What happens in the event the parties do not settle the case?
Regarding “style,” there are basically two styles of conducting litigation-based mediations: facilitative and evaluative. Most mediators use a blend of both styles, although some mediators, such as former judges, may be more evaluative in their approach to mediation, given their trial experience. In many cases, the lawyers and clients that use former judges as mediators specifically want a mediator who is more evaluative in the mediation process to direct the parties with what result might be achievable. Consider asking: Does the mediator tend to talk more to the lawyer or to the client? The answer to this question will provide valuable information about how best to prepare the case for mediation and the approach taken by a particular mediator. Finally, most mediators have a website profile that can provide details of their education, experience, and may even suggest his or her particular style.
One former judge-mediator who uses the evaluative style recounted a recent case where a lawyer complained she “felt like the mediator was taking the other side’s position.” The lawyer was not aware that this mediator’s approach was to offer a candid opinion, believing the parties selected this mediator because they wanted an objective assessment of the relative merits of the case. It would follow, then, that the mediator’s objective assessment of the case might fall on one side or the other.
What should the lawyer do in advance of the mediation?
1) Contact the mediator before the scheduled mediation session
It might sound simple but it is not often done in practice. One mediator recommended that a lawyer who is unfamiliar with a mediator contact him or her and make an introduction. A simple phone call to the mediator can make a world of difference in how the lawyer prepares the case for mediation. A phone conference is an opportunity to ask the mediator what to include in the mediation statement. There may also be information about the case or the parties that is best communicated verbally and not in writing. Remember: mediation statements are often shared with the client. While it is not advisable to say such things as “My client has unrealistic expectations of how a jury would view his case” in a mediation statement, it is helpful for the mediator to be aware of this information in advance of the mediation.
In certain cases, it may make sense to arrange a mutually convenient time to meet the mediator in person. A face-to-face meeting provides enhanced information for both parties and the lawyer will be starting the mediation process as a familiar face, instead of meeting the mediator for the first time when he walks through the door on the day of the scheduled mediation conference.
2) Communicate with the mediator any particularities of the case/client
If the lawyer has a very positional client, the lawyer may have selected a particular mediator for the ability to weigh in as a third party. The lawyer hopes that the client may listen to the mediator, where the lawyer has been unsuccessful in talking reality to the client. If this is the case, the lawyer must communicate this aspect to the mediator. Call the mediator and explain that the client has been unreasonable and indicate the lawyer’s hope that the mediator will be able to provide a third perspective (talk some sense into him?). Otherwise, the mediator will not know of the lawyer’s hope to have an outside perspective strongly imposed to check the client’s unreasonableness, so will not be able to help as much as she could have on this issue. The phone call to mediator in advance is a good idea for other issues, including client control problems, as discussed above.
A lawyer may be hesitant to call the mediator, especially if the mediator is a former judge, because of the prohibition against ex parte communication with a judge that had been emphasized as part of legal training. But mediations, unlike some other forms of dispute resolution such as arbitration, contemplate and often encourage ex parte communication.
3) Ask about the mediation process itself – for example, will there be joint meetings?
An opening meeting with all parties (a joint session) where the parties explain their positions to each other may or may not be appropriate in the particular case being mediated. In some cases, these joint meetings may only serve to alienate and further polarize parties, or they may feel as if the attorney is doing a “show-and-tell” for client. On the other hand, the lawyer should be open to the mediator suggesting occasional joint meetings, which may be useful in working out particularly awkward or difficult details in a complex negotiation.
The mediator may also suggest a joint meeting of the parties only, without the attorneys and with or without the mediator. Remember: A mediation is a dynamic process that requires a certain amount of flexibility to appropriately respond to what is happening in the room at a given point in time. A good mediator will be in control of the process and know what to do and when to do it.
What is involved in preparing for mediation?
1) Prepare the CASE for mediation
Preparing for trial does not equate that the lawyer will be prepared for mediation. Although a good trial lawyer is preparing the case for trial “from day one,” there is a different preparation that should inform the mediation.
A lawyer’s preparation should ALWAYS include consideration of:
- The client’s interest and goals
- The style that will work best in the mediation
- A plan for making offers and concessions
- An appropriate range of achievable outcomes
- An opening demand or offer that is within the range of achievable outcomes
- A flexible “bottom line”
- An understanding of the parties’ relative bargaining position
- Costs and risks of litigation
- Personality issues that may impede negotiations
The lawyer should be conscious of all the reasons for participating in mediation. The lawyer may want to test his theory of the case, narrow the issues, or evaluate witnesses. Most importantly, the overriding goal is to settle the case if it is in the client’s best interests.
2) Prepare the MEDIATION STATEMENT
Prepare a good settlement statement (sometimes called “confidential mediation statement”). This seems basic, but one mediator recently had a case where she had to look to the signature block on the last page to learn who the lawyer was and wasted time looking for the issues. A clear and concise statement of the parties and the issues will save time and money for the client. Consider a bullet-pointed list of key facts, and how the law applies to that fact or set of facts. Refrain from including entire investigative reports in exhaustive detail in the submission to the mediator, unless the mediator has requested it. Always include helpful information about the settlement discussions, if any, that have occurred prior to the mediation session. Never blindly include court pleadings, discovery responses, or deposition testimony, in a submission to a mediator without providing a “context’ for doing so and relating the document in some way to a salient fact or legal argument in the case. Finally, the lawyer will want to include a valuation of the strengths and weaknesses of the case and why she believes the case has not settled.
Here, a sample document can prove helpful. A young lawyer may ask others in the law firm or the mediator for a sample (with the names of the parties and any confidential information redacted, of course!) of what they consider to be a well-drafted mediation statement. Also, taking adequate time to prepare a mediation statement will not only help to settle the case at mediation, but can be retooled for trial preparation in the event the case does not settle. If the client understands the time spent in preparing for the mediation can be effectively used later in trial preparation, should the case not settle at mediation, the client may be more understanding of the fees incurred in the mediation process.
3) Prepare WRITTEN MATERIALS
In addition to the settlement statement, the lawyer must provide the mediator with sufficient documentation to prove the claims or defenses. On the other hand, do not unload reams of useless exhibit evidence on the mediator. Be selective. Each case requires more or less information. The contact with the mediator in advance of the mediation will give the lawyer an idea of the scope and extent of information that is “preferred” by the mediator. For example, some mediators prefer selected pages of a deposition and not the entire transcript; others believe the entire deposition provides them with a more complete context for excerpted testimony.
The materials the lawyer submits will be a combination of what she wants the mediator to know about the case and what the mediator had indicated he wants to know about the case. In any event, it is helpful to bring the entire case file to the mediation for the ability to make reference to a particular document that may not have been included in the submission. In the event the lawyer needs other materials during the mediation, she should have someone on “standby” at her law office in the need arises for documents or other materials to be faxed to the mediation.
Consider including relevant photos – for example illustrating the damage to the client’s vehicle and also any photos of the other party’s vehicle. Similarly, a diagram may be much more useful that a lengthy narrative paragraph for issues such as: construction of a particular part of a building, diagram of a medical procedure, or aerial photo (via Google maps) of the intersection where an automobile collision occurred. A clear color photo is always preferred but if submitting a black and white copy, make sure the copy clearly reveals the particular point for which is it offered. For example, if the lawyer is attempting to show that the damage to the defendant’s vehicle is minimal, it should be evident to the mediator when he views the photo.
4) Facilitate the MEDIATOR’S preparation
Just as the lawyers want to be prepared for the case, the mediator wants to be prepared for the case by reading the materials the lawyers have prepared ahead of time. Both the lawyer and client will benefit from the mediator being adequately prepared. Adequate preparation by the mediator will help the case move along in a timely manner, will allow the mediator to anticipate any questions that need clarification during the process, and may help the lawyer create a favorable first impression by submitting timely, well written materials.
Make sure the materials are delivered to the mediator in a timely fashion. If they are going to be late, call the mediator and request an extension of time. Give the mediator a sufficient amount of time to fully review the materials in advance of the scheduled mediation.
5) Prepare the CLIENT for the mediation process
Clients are likely to be unfamiliar with the mediation process. The lawyer should explain the process thoroughly to the client and address questions in advance of the scheduled mediation. Clarify the role of the client and the role of the lawyer. Discuss who will be doing the talking. Mediation is very different from the courtroom where the lawyer does all or most of the talking on the client’s behalf. Avoid surprise to the client by preparing the client to anticipate being asked to speak, including being questioned directly by the mediator.
However, a young lawyer is likely to be new to the mediation process himself, and may struggle with answering the client’s questions since he may not know exactly what to expect himself. The mediator can help by explaining in detail the process at the beginning and answer any questions. This is an example of why the initial contact with the mediator as discussed above is so important. Young lawyers can candidly let the mediator know they have limited or no experience in mediation; and ask her assistance in explaining the process to the client.
Advise the client to dress appropriately and be well-groomed. Make sure the client understands that a “whiny” or “negative” tone is not productive in a mediation session. Instruct the client to honestly answer the mediator’s questions.
Prepare the client realistically regarding the value of the case. The mediator’s efforts will result in client dissatisfaction if the lawyer has “oversold” the case to his client, and the client learns for the first time at the mediation the more accurate legal value of the claim is far different from the lawyer’s representation to the client. Prepare the client to be open-minded to the mediator, and cultivate a willingness to listen and to change his or her mind if new information or challenges are presented at the mediation.
What happens during the mediation conference?
1) Communicating with the mediator
Avoid heated discussions with the mediator in the presence of your client. This runs the risk of losing the mediator as an ally in communicating with the other side. Or the client may lose confidence in the mediator’s ability to help the parties make the necessary concessions that will achieve a resolution of the case.
The lawyer should not speak “down” to a mediator with the belief he is better informed than the mediator on a particular matter. Instead, he should use the opportunity to educate or remind the mediator about a difficult or obscure factual or legal point. On the other hand, the lawyer must ensure the mediator understands his legal arguments so that the mediator can communicate it to the other side with clarity and precision. If the mediator cannot understand the lawyer’s arguments (or is not persuaded by them), chances are a jury will struggle even more. The lawyer should consider what impression the client will make on a jury or judge… those same concerns apply to the client’s impression on a mediator: if they convince the mediator to like and enjoy the client, the mediator is more likely to work to reach a compromise in favor of the client.
Be frank and honest about the strengths and more importantly any perceived weakness in the facts of the case. If the lawyer can provide some justification or defense to counter a stated weakness in the case, she should clearly communicate those to the mediator, without ignoring known and obvious problems with the case. The lawyer should always be candid with the mediator about the law that applies to the facts, even if she believes the law may hurt her client’s claims. If an issue of law is in flux in the law (i.e. on certiorari or appeal) advise the mediator accordingly. Do not simply argue what you believe the law “should” be. The lawyer must gain the mediator’s trust in this process so that the mediator can lead the parties in an effective negotiation that has the best chance of reaching a settlement in the case.
A note about confidence: A relationship clearly exists between competence and confidence. In other words, understanding the facts and the law of the case allows the young lawyer to confidently present the case, whether in a mediation session or at trial. A young lawyer can somewhat make up for any lack of experience by being well-prepared. Knowing the facts of the case, the substantive law, and fully understanding the process will give the lawyer confidence in front of the client and the mediator, and the lawyer’s advice and counsel will increase in value for the client. All clients want a confident lawyer – however, resist the temptation to confuse confidence with arrogance and remember that mediation is a non-adversarial process, unlike a trial.
2) What to tell the client during the mediation
First, the lawyer should have provided the client information about the mediator. Hopefully, this will allow the client to trust the mediator and feel comfortable speaking in an open and candid manner. The more the client knows about the mediator, the more comfortable the client will be in the mediator’s presence. Make sure, for example, the lawyer explains why the particular mediator was selected, whether the selection was based on area of expertise or interpersonal skills of the mediator. The lawyer can relate what he knows about the mediator to what he believes will best serve the client in the mediation process. For example, if the lawyer believes opposing counsel may be undervaluing the client’s case, the lawyer might choose a mediator that has a solid working relationship with opposing counsel so that opposing counsel will listen when the mediator delivers a message that is at odds with his client’s legal position.
Remind the client that mediation discussions are completely confidential, and not admissible in court proceedings (per CRS § 13-22-307), with the purpose of encouraging candid conversations during the settlement negotiations. The client should know that at any time he can ask to speak to his lawyer privately. Unlike in a deposition, the client does not have to answer the question and, assuming he is unsure how to respond, it is perfectly okay to ask to consult with his lawyer. In addition, the lawyer may stop and consult with his client if at any time she feels the client’s rights are not being protected or the lawyer needs more information.
Educating the client takes on an enhanced importance when the client chooses to appear at the mediation without counsel, whether that choice is dictated by financial concerns or other reasons. The mediation process involves billing for the time of multiple parties and can seem expensive to the client if the client does not understand the very real costs that will be incurred should the case proceed to trial. If the client will appear without the lawyer, the lawyer should brief the client beforehand, including discussing the anticipated result of the mediation. Mediation is based on informed decision-making and clients understanding their legal rights. The client should be aware of the goal so that if and when something is decided differently at the mediation, the client has a basis for comparison. Moreover, the client should be encouraged to speak up if there is something said in the course of the mediation that’s different from what the lawyer told the client.
Beware of clients who continually have to make phone calls to outside persons (i.e., spouse, mother, friend who’s an attorney etc.) for advice. If the client will be depending on outside voices for advice, better to have those people in person at the mediation so they can learn the facts and law together with the client.
3) Look out for clients’ unrealistic expectations
A young lawyer commonly is not skilled at managing clients’ expectations. The young lawyer lacks the depth of experience that is necessary to realistically “value” a case – a skill that comes with repeated exposure to many cases over years of practice. Eager to please a client, a young lawyer may optimistically think her client’s case is a sure winner after initially meeting with the client – and so tell the client. Then, as discovery progresses, medical reports and expert reports might reveal the client’s position is not as strong as she initially represented to the lawyer. Once this happens, the lawyer will have trouble in the face of the client’s expectations, especially if the lawyer had “anchored” an inflated value in the client’s mind but now understands the case is not worth as much as she had originally opined.
Here’s where a mediator can be very helpful to the young lawyer: by serving an important role of “reality testing.” In other words, evaluating how a client’s value of the case might line up with a more objective valuation of the case. However, even the best mediator may not be able to reign in expectations that have been allowed to run far beyond any reality. The lawyer can best avoid this situation by setting up realistic outcomes from the first meeting with the client. It is worth remembering – and reminding the client – that just because the client thinks he’s right does not always mean he will win in court. Finally, remember that most people make decisions based on a combination of how they “feel,” what they have heard, and the “objective facts” of what was said. That said, never disregard a client’s feelings – instead, attempt to address these feelings and understand how they affect outcomes at the mediation.
4) Be cognizant not to wear “adversarial armor”
Throughout law school, future lawyers were trained to be zealous advocates. But the lawyer’s role in mediation is that of a problem-solver. A fierce back-down-at-no-cost attitude may win an argument in the courtroom, but this same attitude in a mediation setting is not just inappropriate, it may even be destabilizing to the process.
Whatever the lawyer’s legal strategy is for trial, the lawyer’s job in mediation is to assist the mediator in pitching her best case to the other side to really make them think about the consequences of not settling and continuing on to a trial. The lawyer’s approach to mediation must focus on making the necessary concessions to resolve the case and eliminate the element of risk that comes with trying the case before a jury. Ultimately, this approach will best serve the client. There is always some tendency for the lawyer to fear they will appear “soft” if they shed the adversarial armor. The key is to remember mediation and trial are wholly different and as such, each requires a different approach.
Speaking of approach, although it would be rare to find a person who has NOT been exposed to a courtroom trial on TV, few people have seen a mediation on TV. For this reason, clients are without a frame of reference. Based on what they have been exposed to in the media about the legal process, clients misunderstand that a “hard-bargaining” approach is required. Make sure the client understands that it is not a productive strategy to be overly adversarial or aggressive in a mediation. After all, one wouldn’t pull out a driver when the golf pin was within 100 feet!
It is acceptable, however, to discuss how the facts of the case might appear when presented to a jury and to solicit comments and thoughts from the mediator about possible jury sentiments. Many mediators will have had substantial trial experience, either as a practitioner or from the bench, so are in a very good position to talk about the possible effects of certain evidence on a hypothetical jury.
Also advise the client not to demonize the other side or see the opposing side as an enemy. Along these same lines, personal attacks or negative attitudes about opposing counsel are not helpful. It is perfectly acceptable, however, to “agree to disagree.” A word about “walking out” of a mediation: it rarely serves the client’s interest. The lawyer should advise the client to be patient and continue working with the mediator to help achieve a resolution. A good mediator will know when the parties are truly at impasse and further time spent in mediation is futile. And never say “this has been a waste of my client’s time.”
1) Timing, timing, timing
The timing of when in the course of the case to schedule mediation is subject to many considerations. Considerations include the preference of the client, opposing counsel, and the availability of the mediator. On one hand, there is an argument for scheduling mediation before expending a lot of money for numerous depositions and/or obtaining many expert reports. On the other hand, setting mediation early on – before the benefit of depositions and reports – may prove difficult, because the lawyer will have less information informing his evaluation of the case. As discussed above, a young lawyer is going to be less comfortable providing advice and counsel about a potential settlement proposal on the basis of less information.
In scheduling the mediation, the lawyer should schedule mediation for enough time to fully complete the process while recognizing the costs associated with the mediation. Finally, on the day of the scheduled mediation conference, do not rush the process. Allow the mediator to set the pace, lawyers’ impatience may drive the mediator to push too hard too fast and cause a walk out.
2) Appearance in person by insurance adjuster, etc.
If the client is a claimant seeking money damages, the lawyer is encouraged to secure a court order that the party with actual authority to settle the case appear in person. An insurance adjuster, for example, who is available by phone may not fully understand or value the information and/or arguments presented by the parties during the mediation in “real-time” and this can lead to either an underestimated value or overpayment in the case. This is particularly important given the increasing trend of the defense appearing by counsel only at the mediation.
A mediation where the individual defendant is absent, and only defendant’s insurer (who will issue the settlement check) appears raises an ethical question about whom the lawyer really represents at the mediation session: the insurance company or the individual defendant. The answer is, of course, the lawyer represents the individual defendant. But when the insurance company is paying the lawyer’s salary, how does he or she reconcile the interests of the individual defendant who may want to settle the case at the mediation session and the insurance company that believes it can “do better” at trial? The mediator may never know whether the emerging offers from each side at a mediation are communicated to the actual “client”… and some mediators would wager they are not.
3) Momentum in the process
The lawyer should expect to stay on site during the entire course of the mediation session. Plan ahead and understand how the mediator handles any lunch and dinner breaks. Leaving the site of the mediation often results in a loss of momentum and may even lead to second-guessing.
However, the lawyer should be sensitive if the client perceives he is being forced into any decision: if the client insists on adjourning the process, the mediator can be helpful in explaining the effects of not continuing the process. Should the client persist in wanting to adjourn, remember that mediation is a voluntary process and a client can not be compelled (short of a court order) to attend the mediation.
Bring a laptop computer or iPad to look up relevant case citations or other information at the mediation. Check ahead of time to understand how the rooms are configured to accommodate any equipment.
Think about using technology if a particular aspect of the case would benefit from audio- visual explanation. For example, if a products liability case involves a particular mechanical process, suggest that the mediator watch a YouTube video showing a tutorial about the particular process by way of background for the case.
Make sure the client fully understands that in most cases, the client will be paying a pro rata share of the mediation fees depending on the number of parties involved in the litigation. The lawyer should understand how the mediator will bill for the mediator’s services in the event the parties cannot agree. For example, some mediators divide the fees by the number of parties unless the parties indicate they have agreed to a different split.
1) Think broadly and analyze the interest behind the client’s position
Negotiating may be “bargaining in the shadow of the law” but the law does not always determine the outcome. In other words, there is a potential for a much broader resolution of a case at mediation without the constraints of a particular legal argument. This flexibility in crafting a remedy outside of court is a main selling point of mediation.
Focus on the interests of the client – what the client needs to take away from the mediation. In other words, what’s at stake behind the dollar amount, what the case is really about. Understanding the interest will affect how the parties craft a remedy to serve that interest. In turn, this will open barriers to resolution, and the lawyer can prepare for these. A lawyer who can grasp the interest behind the position will be more effective in resolving the case in mediation, where the remedies available are more flexible than at trial. Remedies that address the client’s interest are not necessarily on the table once the case is in court.
Examples of this are often found in employment cases, such as Title VII discrimination lawsuits. A mediated resolution of the case can include such non-monetary things as a letter of reference for the terminated employee that has value moving forward as the employee searches for new employment. That same letter of reference will never be part of a court order or a jury verdict. In another example, i.e., in a divorce case, when husband says “I want ___” (i.e. the house), listen for why he wants it, what interest does it serve.
2) Explore the best alternative to settlement (BATNA)
Be willing to honestly explore the client’s best and worst days in court – and to help the client appreciate the risks of trial. If the case does not settle today, what is the best alternative? What happens if the case goes to court, and what are the costs of not settling the case today? Consider the costs of additional discovery, expert reports, attorneys’ fees, witness fees, the client’s lost wages for days in trial, when evaluating any particular offer or concession. Think about the legal case (what elements must be proved at trial) and whether there are evidentiary issues that may affect the outcome of the case. For example, if there is a witness that is unavailable to testify at trial, and the witness’s report would be inadmissible hearsay, how might the absence of this evidence affect the outcome of the case?
3) A word about an opening demand and having a “bottom line”
A lawyer may struggle with deciding where to start with an opening offer or opening demand. If the lawyer is unsure about a number, he can choose not to make any opening number and wait for the mediator to suggest a number. Waiting to make an opening additionally allows the mediator to “take the temperature” of the other side by visiting with them first without making any opening demand or offer. Finally, it is a big mistake to demand a number higher than the number the other side has seen in any pre-mediation demand.
The lawyer will also have to know the bottom line value of the case. As part of case preparation, counsel the client regarding the number beyond which you will not go. An unprepared lawyer will be subject to the whims of the process, and in the face of new information will not be able to stick to a bottom line.
4) Separate the people from the problem
Do not criticize the character of the mediator, opposing counsel, or the other party. It is always a mistake to make personal attacks. For example, in an injury case where the lawyer believes the plaintiff is malingering, he should refrain from referring to the person as a “bum.” As with elsewhere in the legal community, a lawyer’s reputation and character will precede him in the mediation. As with judges on the bench, mediators discuss attorneys among themselves. A young lawyer, without a reputation established, has a unique opportunity to set the tone from the beginning to earn the respect of his opposing counsel and the mediator.
5) Trust the process
Don’t go behind the back of the mediator to attempt negotiation with a party where there are multiple parties on each side. The mediator may have a particular reason for the approach taken and the young lawyer should not take it into his own hands no matter how much he may feel entitled to control the process.
In one recent case, a mediator recounted that the case could have settled except she felt the lawyer kept trying to put words in his client’s mouth, caused by the lawyer wanting to be adversarial. Or the lawyer was “going through the motions” of mediation with no intention of settling, wanting the case to continue so he can keep billing his client. Both of these attitudes a lawyer should avoid.
Bring a draft settlement and release to the mediation and read all documents carefully before signing. Avoid any last minute drafting issues if difficulty finalizing an agreement with opposing counsel is anticipated. The lawyer must carefully review any written settlement agreement with the client before executing. A signed settlement agreement is enforceable in court. § 13-22-308, C.R.S. The client needs to understand that because it is an enforceable contract, there are only very limited circumstances that allow a party to opt out of a settlement agreement. These include duress and incompetence. See Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004).
Conclusion: One final note and caveat
Keep in mind that mediation occurs in many different kinds of disputes. There is no one-size-fits-all approach to mediation. The practical recommendations in this article are based on interviews with mediators (some of whom are former judges), law professors, and young lawyers. While the information presented reveals some common themes, it should be tempered by sound advice and counsel by asking what is in the best interests of this particular client in this particular case. The idea is to familiarize the process of mediation so the next time the lawyer finds her case headed that direction, she can prepare for what’s coming. In addition to knowing (or learning) how to negotiate, with the information related here, young lawyers (and not so young lawyers) can navigate the mediation hopefully with a little more insight into the process – and ultimately – a better result.
Mediation Advocacy for the Professional, John W. Cooley
Getting to Yes
Lawyers Work Professor
 See Thomas H. Cohen & Lynn Langton, U.S. Dep’t of Justice, Bureau of Justice Statistics, Civil Bench and Jury Trials in State Courts 9 (2005).