It’s no secret that most lawsuits eventually settle. The uncertainty, cost and delay of litigation provide a powerful incentive for parties to voluntarily and informally resolve their claims.
Since most lawsuits are going to settle (either at mediation or otherwise), it’s important for counsel to determine when (and how) is the best time (and way) to settle. Settlements without mediation can be reached anytime. But these days settlement at mediation is definitely the “soup de jour.” Here are five tips from a seasoned mediator for greater success at mediation.
- Pick the Right Mediator.
The importance of this point can’t be overstated. Choose the right mediator and you may have moved the ball two-thirds of the way down the field. Choose the wrong mediator and you may find yourself picking up the pieces after a frustrating day of unsuccessful negotiation.
So who is the right mediator? It depends on your case. Look at your facts. Look at the law. And then look at the personalities involved. Since you’ve probably never met the opposing party, your own client will have to educate you about the other side (if they know them). If the client on the other side is an unknown quantity, then you’re left to make your own best guesses as to that side’s values, wants and needs.
Is the other side in love with their case (without a reasonable justification)? Then you may need a mediator with a wealth of trial experience — one who understands the law, the realities of trial and one who can educate the other side about the facts of life in the law.
Is the other side edgy, testy, accusatory, short-tempered? Then you may need a mediator who is calm and won’t easily take offense. A mediator who takes offense at emotional outbursts or hard-ball tactics by the other side may be unwilling to continue mediating to the point where resolution is possible. (The quickest way to end a mediation without resolution is for someone to leave or for the mediator to throw in the towel.)
Does the other side usually wring their hands or have trouble making decisions? Then you may need to choose a mediator who can assert some bravado to get them off the dime. Does the other side feel wronged, disrespected or disabused? Then you will want a mediator who is compassionate, understanding and patient. In such cases the mediator will need to help the other side feel that they’ve been heard and that their values and opinions matter.
- Get What You Need.
What are your client’s goals, values and objectives in this litigation? Sometimes it’s money. Sometimes it’s something else. Your client may never agree to settle this case unless their goals are sufficiently met. But before that can happen, you first have to know what your own client’s goals and values are. Talk to them. Find out what’s driving them.
Are there key facts or documents you don’t have yet? Consider putting over the mediation until you are able to get them – and then present them to the other side. You’ll get better mediation results when you can present a strong, persuasive case. Wordsmithing, demands and assertions alone aren’t enough – your case will be more persuasive when you have the facts and documents to back up your claims and defenses.
If there’s no real dispute about key facts or documents, then early mediation may be the best way to go – before the parties have ratcheted up their legal costs through months of discovery and motion practice.
- Get the Other Side What They Need.
Perspectives vary. Both sides often feel like they have a winning case. If the other side fails to appreciate the predicament they’re in then you’ll need to show them where they have a problem.
Marshal the necessary facts. If the case depends on witness testimony, consider getting witness statements. If it’s a technical case, consider getting an expert report. Sometimes an expert at mediation can provide technical information and a perspective the other side simply hasn’t identified, understood, appreciated or accepted. Expert opinions won’t be necessary in every case – but in the right case they can be invaluable.
If the other side doesn’t know about key facts or documents, consider developing (and sharing) those facts or documents with the other side in an appropriate way. If the other side doesn’t seem to understand the law, then use your brief to educate them about the key legal aspects of your case. If the client on the other side wants something your client controls, then discuss with your client in advance what kinds of terms your client will need or want in order to relinquish that control. If you are prepared to provide the other side with what they need, you’ll be in an excellent position to negotiate what your own client wants in order to resolve your case.
- Get the Mediator What They Need.
Mediator time is “up for grabs.” Nobody wants to spend more time than necessary on mediation briefs. But effective mediation briefs do more than just orient the mediator to the case. Use your mediation brief as an opportunity to present your facts in the best possible light (without overreaching). Let the mediator see the facts as you see them – and as you plan to present them at trial. This will help the mediator clearly discuss your facts with the other side – and can help the other side understand the strength of your case. Go ahead and cite key legal statutes and precedent. Citations to important case law can help your mediator point out the strengths of your case to the other side. I recently mediated a case where one of the briefs marched through the facts and the applicable law in great detail – and it became the controlling document for the entire mediation. We got the case settled due in significant part to the law that was clearly laid out in that party’s mediation brief.
Give your mediator some runway to work with. I try to read mediation briefs within a day after they are submitted. Oftentimes mediation briefs highlight additional facts, law or exhibits that may be important but were not included with the brief. If the mediator receives briefs early enough then the mediator can request that such documents be supplied to the mediator (and the other side) in advance of the mediation so that your case can be fully laid out prior to mediation day. This can significantly help the mediator in discussing your case with the other side. If the mediator only receives your brief a day or two prior to the mediation, then your brief can orient the mediator to the case – but there may be insufficient time for the mediator to request further facts or documents that may have been valuable in getting the case resolved.
If the case hinges on a contract or other key document then consider providing the mediator with actual copies of such documents as exhibits to the mediation brief. Those kinds of documents can often be invaluable in showing the mediator the strength of your case. A mediator who is convinced of the strength of your case is in a far superior position to discuss the strength of your position with the other side.
- Never Underestimate the Importance of Non-Monetary Considerations.
Judgments do some things really well – like awarding monetary damages. But judgments are sorely lacking in other departments – like acknowledgments, concessions, or rights and benefits involving third parties.
I recently mediated a case between family members. After we worked on the case for several hours I looked at one of the brothers and said “Some cases are about the money – and some aren’t. Is this case about the money or about what the money represents?” He acknowledged that the case was not about money but instead “what the money represents.”
What did he mean by that? Did he mean that money was unimportant? Not at all. Some cases are really about the money. But other times a case may be primarily about what is “represented” by the money – such as respect, fair treatment, an acknowledgment of a wrong, a wound, an inequity. Money is enormously important – not only because that’s how lawyers get paid, but also because it’s easily quantifiable – and when it comes to money it’s easy to tell whether recipients are being treated equally or not. Sometimes parties want substantial money in settlement primarily because they don’t want to feel like the other side got ahead of them (or got more than they did). These dynamics can be critical to some settlements. When lawyers and mediators see and understand these “non-monetary” considerations they are often able to put together settlements that would have been impossible otherwise.
Sum-up. Advance preparation can have a big effect on whether or not your case settles at mediation. Skillfully using available resources like mediation briefs, exhibits, timing and mediator selection can make all the difference on the success of your mediation.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of business, real estate and construction law experience. He is the 2019-2020 chair of the ADR section of the Contra Costa County Bar Association and the 2020 co-chair of the ADR section of the Alameda County Bar Association. Reach him at [email protected]