Mediation Message No. 42

APPROACH MEDIATION AS IF IT WERE A COURT TRIAL

Since most civil matters settle rather than are tried, the mediation of those cases assumes critical importance because it becomes, in effect, your “day in court.” Thus, approach this phase of the litigation process as if it were a court trial, rather than just another settlement conference, because there is a direct correlation between extensive mediation preparation and the realization of expectations. The following are recommended steps, many of which are used in trial preparation, for achieving the best results at mediation for your clients:

Decide beforehand the mediation goals. Most usually, settlement is the raison d’être of a mediation. However, even if the parties cannot agree, mediation can be useful for learning more about the opponent’s theories and goals, resolving discovery disputes and impressing the opposition by your command of the facts or law.

Determine when the mediation should be conducted. Rather than wait for the trial court to order or “recommend” mediation, calendar it when it is most advantageous to your client. An early date, either before filing the complaint or shortly thereafter when discovery is in its preliminary stages, benefits the party that is more knowledgeable about the facts. If successful, early mediation also saves the parties from mounting legal fees and costs. A mediation calendared shortly before the filing or hearing of a motion for summary judgment/summary adjudication can be effective because the opposing party may not want to risk settlement opportunities when confronted by sound legal and factual contentions. Oftentimes, the best time to schedule a mediation is just before trial when both parties know each other’s cases and can most accurately assess the pluses and minuses of trying the case. The downside of such a late mediation is that it allows the opposing party, in the interim, to become familiar with the facts and increases the client’s expenses.

Decide who the mediator shall be. Unlike trial, the parties have great latitude in selecting a mediator. That person should be knowledgeable about the process and the applicable law. It is also helpful to select a mediator whose style fits the needs of the case. In other words, do the parties need a mediator who is forceful or compassionate or can operate in both extremes?

Be familiar with the legal principles at issue. Just as you would before going to trial, review the jury instructions for the elements of the applicable causes of action and the leading legal texts (e.g., the annotated code; Witkin-Epstein; Miller & Starr) for additional relevant law. Further, know the standards and rules that apply to mediations. In particular, be familiar with the requirement in Rule of Court 3.874 that the parties, their attorneys and insurance representatives with authority to settle or recommend settlement must attend in person, unless excused, all court-ordered mediations (as opposed to voluntary mediations which are not yet covered by any formal rules) and that all communications in mediations and writings prepared expressly for those mediations are confidential, pursuant to both Evidence Code sections 1119 et seq. and Foxgate Homeowners Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 and Rojas v. Superior Court (2004) 33 Cal.4th 403.

Analyze the factual and legal strengths and weaknesses of your case. Everyone knows the strengths of their respective cases; the weaknesses are sometimes overlooked. Just as you should be prepared to meet those deficiencies at trial, be ready to discuss them with the mediator because he/she will surely raise them when meeting with you in a separate caucus. The best way to anticipate this dialogue is to write out the elements of every cause of action and then, in adjoining grids (one each for the witnesses and the physical evidence), insert all of the admissible evidence in support of every element. Be prepared to defend any cause of action that lacks evidentiary support or uses evidence that is arguably inadmissible.

Decide whether or not to reveal a “smoking gun.” Tactical decisions are not unique to trials. A major decision at mediation is whether to allow the mediator to advise the opposing party about an undisclosed factual or procedural “smoking gun” which supposedly could impact the case at trial. There are no clear answers as to whether you should reveal that potent issue, but the following questions will help in resolving the conundrum: Is the information really case dispositive? Will it turn the judge or jury to your side or is its value exaggerated? Will the information be revealed ultimately in discovery? Is the information inadmissible and, thus, could never be used at a subsequent trial? Is the financial cost of developing the “smoking gun” at trial prohibitive? Will the matter probably not be tried because of client reluctance, financial costs or the strong possibility that it can not be won?

Prepare clients for mediation. Just as you would prepare your clients before calling them as witnesses at trial, advise them before the mediation as to the purpose of the proceeding, its procedures (such as confidentiality and the possibility of a joint caucus), how to dress, where to park and how to act in both a joint caucus and in a separate caucus when only the mediator is present. Discuss whether they should take an active part in the mediation and, if so, what questions the mediator may ask of them. Also, discuss the possible demands and offers that should be made to resolve the matter.

Determine whether any witnesses, other than the client, should attend the mediation. As in a trial, consider what witnesses, other than the party, will best present the factual portion of your case. For example, is there a credible witness who can corroborate the client’s version of the facts (as in an employer-employee dispute) when the client’s credibility is under attack? Alternatively, consider using a declaration when that witness is unavailable. Such considerations should not be limited to lay witnesses. While experts are commonly used only in construction defect mediations, they can be effective whenever an issue of liability rests substantially on their opinions and their identities are already known to the opposing party.

Use demonstrative evidence and other illustrative aids. Rely, as you would at trial, on physical evidence and illustrative charts to emphasize the key points in your case. Enlarge pictures that depict accidents and injuries. Use PowerPoint or other comparable technology to highlight key language in contracts, correspondence and deposition testimony. Provide a chronology to clarify confusing events, such as the dates in a construction defect or legal malpractice claims. Produce a video that dramatically emphasizes an important aspect of your case (for example, the day-in-the-life of the plaintiff or portions of a witness’s taped deposition). In other words, make your case more interesting and powerful by playing to the mediator’s visual senses.

Provide an interesting and timely mediation brief. Use this opportunity to “sell” your case and impress the mediator with your grasp of the facts and law. Present the theme in a brief opening paragraph, followed by a concise review of the pertinent facts. Avoid rehashing obvious legal principles; summarize the causes of action and discuss only those issues that are in conflict or are novel. Include exhibits that truly clarify or explain a factual contention. Advise about prior settlement offers or demands. And then submit the brief several days before the mediation so that the mediator has enough time to review it and research, if necessary, the applicable law.

Prepare an opening statement. If you have confirmed that the mediator shall convene a joint caucus, prepare remarks for that session which address the legal and factual strengths of your case and why you shall prevail at trial. At the same time, avoid comments that will only inflame the opposing party and its counsel.

Mediation, like trial, is theater. The mediator and your opposition are both the audience and critics. Weave all that you have worked on so carefully – your knowledge of the facts and law, the prepared client, the exhibits and the tactical decisions – into a compelling presentation for the mediation. That approach will produce dividends. After all, mediations and trials are also alike in that preparation for both produces good results, while a seat-of-the-pants attitude usually results in diminished returns.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, December 2007

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