| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Three,
Number One |
Bob Park, Chair
Jonathan S. Rosenthal, Editor
Elizabeth Yarema, Co-Editor |
Seizing the Mediation
Moment
What Lawyers Need to Know to Prepare for Mediation
By Elizabeth Yarema, Esq.
Your
client is going to mediation. The mediator has been appointed by the Court or
agreed to by you and opposing counsel. The date has been set. The parties
necessary for settlement have committed to being present. Now what?
While
many lawyers know what to do to get ready for trial, far fewer truly understand
the role of the lawyer in preparing for a mediation session. Far from assuming
that their function is limited, savvy attorneys understand that there are many
things advocates can and should do to maximize mediation opportunities for their
clients. Consider this: mediation is often the best opportunity for counsel to
speak directly to an opposing party. Lawyers who know how to seize the
mediation moment can provide their clients with the type of service that
generates repeat business and referrals while providing themselves a feeling of
accomplishment and career satisfaction.
Getting ready to represent clients in mediation is as simple and as challenging
as: 1) understanding that mediation is different from litigation and 2)
preparation, preparation, preparation.
What is Mediation?
Although an in-depth discussion of what mediation is and how it works is beyond
the scope of this article, at a minimum, attorneys representing clients in
mediation must understand its basic principles. At its core, mediation is
grounded in the belief that a win/win solution is both possible and preferable
to a scenario in which there is a loser. A principle requirement of mediation
is that the parties make a good faith effort to settle the dispute. If your
client is in mediation, you need to support this principle or have a very good
and client-oriented reason to the contrary.
Preparing to Mediate
There are at least
three prongs to preparing for mediation: preparing yourself, preparing your
client, and preparing the case file itself. Mediation is a type of negotiation.
Whether you consider yourself a veteran negotiator or a novice, before beginning
mediation, review basic negotiation principles. One goal of such a review is to
develop your own negotiation strategy and style for mediation at this particular
stage of the case, recognizing that your approach may need to be different
depending upon whether it is early in the dispute or closer to the eve of
trial. You must also plan how to help your client develop his or her
negotiation style, and anticipate the strategy the other side may employ.
Remember that adversarial posturing and behaviors meant to anger or threaten
have no place at the mediation table. Your mediation negotiation style should
be friendly and reasonable, as you are much more likely to get the other side to
consider your client’s
perspective if they are not angry or intimidated.
Your
client most likely will be unfamiliar with mediation and may not be an
experienced negotiator. Before the session begins, you will want to meet with
your client to explain the process and to coach him or her in negotiation
techniques and mediation strategy. You will also want to cull from your client
likely responses and collaborate with him or her to formulate clearly defined
goals and expectations. Ask clients to consider ideas like: what is their Best
Alternative To A Negotiated Agreement (BATNA) and their Worst Alternative To A
Negotiated Agreement (WATNA)? Will they have to maintain a relationship after
this matter is settled or decided? If so, how do they want that future
relationship to be? Have they prioritized the issues in order of importance to
them? Are the potential settlement terms non-monetary as well as monetary? Can
they estimate a settlement range of figures and terms? What do they expect the
other side to say? What do they think is the other side’s perspective?
Ideally, meet with a client prior to the mediation also to rehearse talking
points (main themes or responses to anticipated themes), and get the client as
comfortable as possible with the process, your role, and his or her role. If
you are not accompanying the client to the session, which occurs often with
domestic mediations, meet with the client more than once to help him or her
prepare. Determining if a client is stable, coherent and able to fly solo during
a mediation session should be a preliminary consideration prior to even setting
up such a mediation. Similarly, whether or not a particular case is suitable
for mediation should be a very early decision.
Using Exhibits to Your Advantage
One
of the benefits of mediation over trials or other types of alternative dispute
resolution is that mediation is generally relatively document and exhibit free.
This relative freedom is not absolute, however. The smart lawyer recognizes the
value of carefully chosen or prepared documents used during mediation to
illustrate a point or support a proposition. In many court-ordered meditations
in Maryland, attorneys are required to complete a data information sheet and
forward it to the mediator at least five days prior to the mediation. The sheet
requests basic case information and details regarding any settlement history.
Though the sheets are confidential and not shared with the other side, some care
and thought should go into preparing them. The sheets are your first concrete
opportunity to present a streamlined mediation strategy and to share with the
mediator your perspective of the dispute. As a neutral facilitator, the
mediator does not favor one side against another, but if your presentation of
the facts and issues clear and sets up a reasonable paradigm within which to
discuss the case, so much the better for your client. Remember that most
mediators prefer to receive minimal paperwork prior to the actual session, so
keep whatever you submit succinct.
Once you are in the session, the
judicious use of exhibits can be very effective. Utilize the opportunity to
demonstrate your persuasive powers to the other side with an exhibit that
illustrates or quantifies your theme or supports your bottom-line. Such
exhibits may be in the form of traditional charts, diagrams or copies of
evidence. The true freedom is that you are not bound by evidentiary rules.
Relevance to the legal question is not always the most important consideration,
but relevance to your mediation goals is primary. For example, in a domestic
case, where the parties are concerned about the children, bring along a picture
of the children to show the mediator and leave it on the table, where everyone
can see it. In a contract dispute between a longtime supplier and customer,
make sure that, in addition to your client (or person who has settlement
authority), you bring along the person who developed and maintained that long
time relationship with the other side. Provided you remember that exhibits
supplement, not supplant, your mediation strategy, thinking outside of the box
and careful preparation of select documents can create significant value for
your mediation client.
Conclusion
One
of the elements of mediation that clients repeatedly identify as attractive and
satisfying is the control and voice they feel they regain during the process.
Some clients, who are not familiar with the rigors and true costs of litigation,
may question all of the preparation for a process they thought was going to save
them time and money. While it is important to remain sensitive the economic
concerns of your clients, it helps to remind clients that in order for you to
help them meet their goals through mediation, solid preparation is essential
and, when weighed against the costs of trial, mediation is cost effective. Even
when settlement is not achieved, the preparation effort is not wasted. Many
times following a seemingly unsuccessful mediation, the parties still settle as
a direct outgrowth of the seeds sown during the mediation session. Even if the
case continues to trial, the time spent with the client preparing for the
mediation helps the client appreciate all of the effort put into his or her
case. Also, the lawyer begins to focus on the case at an earlier point, with
subsequent organization and, perhaps subconscious percolation time for brilliant
insights as a result.
Elizabeth Yarema is an attorney and mediator with a private
practice in Baltimore County, Maryland. Focusing the mediation aspect of her
private practice on family and general civil cases, Elizabeth is often either
the mediator or counsel for clients engaged in mediation.
