Mediation – Why It Works and How To Use It Effectively

MEDIATION – WHY IT WORKS AND HOW TO USE IT EFFECTIVELY
JUDGE MICHAEL D. MARCUS (RET.)

ADR SERVICES, INC.
LOS ANGELES, CALIFORNIA

A. THE NATURE OF THE MEDIATION PROCESS

Mediation of law suits has both necessarily and justifiably become an integral part of the civil litigation experience; “necessarily” because litigation is so unpredictable and expensive and “justifiably” because of all the benefits mediation brings to the plaintiffs and defendants who take part in the process.

Mediation gives litigants the power to decide their own fate. The neutral mediator does not, like a judge or jury, tell the parties what they must do. Instead, the parties, with the assistance of the mediator, attempt to resolve the dispute on terms which they can accept. These terms may not always be favorable but, as opposed to the uncertain trial process, are known and therefore more manageable. Jurors and judges, on the other hand, are unpredictable and can issue verdicts that impose significant or insignificant (depending on one’s perspective) financial consequences without consideration of either party’s ability to pay or live with the result.

As mentioned, mediation is conducted by a trained, neutral person who brings no bias or favoritism for one side or the other to the discussions. This impartiality is of great benefit because litigants, including their attorneys, can not help becoming emotionally and subjectively involved in the facts of their respective cases. As a result, they develop legal tunnel vision, which is the tendency to picture all of their facts and legal theories through rose tinted glasses while viewing the opponents’ cases with cynicism and disdain. Mediators, in contrast, dispassionately look at the facts. By such an approach, they bring objectivity to the analysis and provide the parties with the opportunity to see the issues from a non-combative perspective.

Mediation, which can take place at any time, also saves the parties substantial litigation costs, especially if it is conducted early on before extensive discovery proceedings commence and complex motions, such as those for summary judgment, have been filed. Even if mediations are conducted late in the litigation process, they are still cost-beneficial because the effort to prepare for trial after discovery has been completed and the actual time to try a matter, depending on the nature of the case, can require days, if not weeks, of attorney time.

Mediation is a positive force because it is confidential. In other words, the law provides that everything said and written in a mediation stays within that process. No statement or admission by the parties or lawyers or exhibits prepared for the mediation can be used by either party at a subsequent hearing or trial, should the mediation be unsuccessful. Such confidentially allows the parties to speak freely, which encourages

Copyright, Michael D. Marcus, December 2005
settlements.

Finally, mediation works because it is a dynamic process that adapts to the needs and personalities of all of the participants. Because no two cases are alike, the process is best served when the mediator reacts to the nature of the parties and their goals as well as the relevant facts and applicable law rather than have everyone conform to a pre-conceived game plan. For example, a joint caucus or meeting of all the participants at the beginning of a mediation, while common, may be harmful or disruptive because of prior antagonism between opposing counsel or the parties; intensive fact gathering may be necessary in one instance when formal discovery has not yet begun whereas it is unnecessary when the trial is imminent; the mediator may find it helpful to talk with all of the attorneys, without their clients, and unproductive to do so in another instance. There are no established guidelines for using any of these techniques; each is dependent on the evolving circumstances of the mediation. The important determinant for the mediator is to always be keenly aware of how the mediation is progressing and to incorporate tactics which will bring the parties together.

B. MEDIATION PREPARATION FOR ATTORNEYS

Regardless of their good intentions, litigants may never get to try their cases in court. Mediation thus becomes their best opportunity to achieve a fair result. Accordingly, it should be approached with the same care as one would prepare for trial.

Attorneys should first consider the best time to conduct the mediation. An early mediation reduces expenses for the client but may not work if the facts have not yet been sufficiently developed for discussion. Setting a mediation before a calendared motion for summary judgment puts pressure on the subject of the motion if it has a strong chance of being granted. Or, the mediation could he heard just before trial when the facts have been fully developed and the risks associated with trying the case are clearly on the minds of all concerned.

Next, attorneys should select a mediator whose background, training and personality best fits the needs of the particular case. The mediator should have a good grasp of the legal issues to be discussed. Equally important is that the attorneys pick a mediator who will work well with the client and opposing counsel.

Sufficiently before the mediation date, attorneys should have looked at all the law which could impact the discussions. At a minimum, the instructions that a judge would give at trial regarding all of the causes of action and potential defenses should be reviewed, since a mediator might raise such legal issues when questioning the strength of a party’s legal theories.

After the facts and law have been collected, attorneys should analyze the weaknesses as well as the strengths, both factually and legally, of their respective cases because mediators will most certainly focus on the weaknesses. Every important fact and theory should be dispassionately reviewed. For example, are the witnesses credible? Is critical evidence admissible? Is an important legal theory supported by case law or statute?
Clients should be prepared for the mediation process. They should be told how the process works, what the attorneys hope to achieve, how to dress and act and how to respond if questioned by the mediator.

Attorneys should consider whether to bring additional witnesses or support people to the mediation. Outside of construction defect litigation, few parties, perhaps because of costs or not wanting to provide “free” discovery, use experts at mediations. Nonetheless, an impressive expert in the appropriate case might be so persuasive as to sway both the mediator and the opponent. Youthful and vulnerable clients should be accompanied by a relative or friend. Clients with language difficulties should bring a person who can interpret for them.

Just as no experienced lawyer should go to trial without demonstrative evidence or illustrative aids that effectively dramatize his or her case, no lawyer should go to a mediation without such story-telling devices. Whether the case involves a business breach, an employment dispute or alleged injuries caused by a car or defective product, the facts can always be enhanced by reference to applicable (including legible and visible) correspondence, contracts, charts, photographs or, even more dramatically, a PowerPoint presentation of these same items.

The mediation brief should be thoughtful, organized and well-reasoned because it is often the attorney’s first contact with the mediator. The opening paragraph should set forth the theme of the case in language that catches the mediator’s attention. Next, the status of the case, the causes of action or defenses, relevant facts, important case law, legal theories and settlement status should be discussed. Documents and exhibits which clarify or emphasize important facts should be attached. At the same time, adding extraneous documents, such as multiple invoices, complete deposition transcripts and hospital admission records, are merely a waste of trees. Finally, the brief should be sent to the mediator several days before the mediation; such a courtesy shows that the attorney is prepared and allows the mediator to leisurely review the document.

Attorneys should be prepared to make introductory remarks at the mediation before both the mediator and opposing attorneys and their clients. Such remarks, unlike an opening statement at trial which is limited to what the party expects to prove, can be argumentative, reference legal issues and even include comments by the client. The only caveats are that the statement be interesting, informative and not inflammatory.

Lastly, if settlement negotiations with the other side have not yet begun, attorneys and their clients should have discussed, before arriving at the mediation, what their opening offers or demands shall be. Influencing this process should be the clients’ goals and expectations, the strengths and weaknesses of the respective cases and the “message” that is sent by the first offer or demand.

Much like preparation is the hallmark of a successful trial lawyer, the key to effective mediation practice is found in the careful consideration of details. Verbal wizardry is an admired skill but, by itself, is not nearly as persuasive as is the attentive lawyer who has anticipated and prepared for all contingencies.

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