Category: Mediation

• Do give consideration in advance as to what confidential information will be revealed to the mediator in the breakout session.
• Do not attempt to rush the mediator into giving an evaluation of the merits of the case.
• Do give the mediator ample opportunity to speak to both sides.
• Do not become mired in arguments as to why you will succeed at trial.
• Do focus on settlement proposals and possible compromise.
• Do not forget the ultimate goal is to settle the case.
• Do be patient and understand that the negotiation takes time and moves slowly.
• Do not become frustrated if a resolution is not reached quickly and don’t abandon the process.
• Do remember that the best day to settle the case is today.
• Do not become too greedy – pigs get fed, hogs get slaughtered.

Breakout sessions are the first opportunity after the joint session in the mediation process for the attorneys to privately discuss their positions with the mediator. Oftentimes information that was held back during the joint session for tactical reasons will be revealed to the mediator in the breakout sessions. At the same time, much of what was already said during the joint session will be repeated in an attempt to influence the mediator’s evaluation of the case. This is a necessary evil of the mediation process based upon the fear that the mediator does not fully comprehend the party’s position. The parties need to know that they have been heard by the mediator before he reaches a conclusion as to his evaluation of the case and possible settlement options. They need to know that he has really understood what their positions are. The worst thing a mediator can do isjump to a conclusion with respect to the evaluation of a case. Further, it is to both parties’ benefit to give the mediator the time to speak with both sides privately, several times, as it will assist him/her in reaching a more reasoned view of the settlement possibilities and the parties’ respective positions. This slowing of the process also lends itself to the parties becoming more accepting of the recommendations of the mediator.

Often the parties in the breakout session become mired in their arguments as to why they would prevail if the matter is not settled and goes to trial. They forget about the ultimate goal which is to settle the case. While it is necessary to ensure that the mediator understands their positions the parties should, in advance of the mediation, prepare their initial settlement proposals and convey those to the mediator. It is best not to wait until the breakout session to start crafting a settlement proposal. Instead, focus on settlement solutions and do not re-hash the merits of the case.

The mediator must engender confidence in the process by slowing it down and taking time. Attorneys may want to shorten the process if a solution is not forthcoming quickly enough. Again it is important and beneficial to both sides to feel that they have been heard, and to consider what the risks are in continuing the litigation from the neutral’s perspective. Give the mediator ample time to work the process. Negotiations leading to a shifting of a party’s position and acceptance of a compromise takes time.

In many most mediations, it may appear, at the outset, that settlement is an impossibility. It is a mistake to become discouraged by the initial settlement offers. The most difficult cases will settle if adequate time is taken.

Under the best of circumstances, mediation may not result in the resolution of a litigated dispute. This may be as a result of factors which are not under the control of the parties. However, mediations are often negatively affected by basic mistakes involving factors that are within the parties’ control. While many of the following points may seem simple, I have seen even experienced attorneys make these mistakes.

1. Failure to submit a brief prior to the mediation.

This is an excellent opportunity to inform both the mediator and your adversary of your position. It will save time at the mediation and facilitate negotiations.

2. No discussions with your adversary have taken place prior to the mediation.

Some preliminary discussion with your adversary regarding the parameters of the negotiations should take place beforehand. This may often encompass preliminary settlement demands and/or offers which will give some shape to the mediation and avoid surprise.

3. A demand or offer that has been made prior to the mediation is changed.

This can doom a mediation from the outset. Parties cannot negotiate against a moving target. It is simply bad faith to make a settlement demand or offer prior to the time of the mediation and change it on the day thereof. This obviously breeds distrust and poisons the negotiation process.

4. The client is not present at the mediation.

Often the party with the authority to settle the case does not appear at the mediation. This can create a lack of trust with respect to the ability of counsel to negotiate with authority to settle the case and thereby impede the negotiation process.

5. The client has not been properly prepared for the mediation process.

What is common knowledge to the attorneys with respect to the mediation process is usually alien to the client. Clients may not fully understand the negotiating process. The client can become easily frustrated by the back and forth negotiations and become less willing to compromise.

6. The parties refuse to speak to each other face-to-face.

Many times, due to animosity that has arisen out of the litigation process, counsel and/or their clients do not wish to speak to one another face-to-face. This is a mistake as the opportunity toexplain one’s position is an integral part of the mediation process.

7. A party refuses to respond to a demand or offer.

The mediation process is usually one of give-and-take. Even if you feel that the offer or demand is “insulting,” it is important that some response be given albeit in the form of a nominal compromise. A refusal to negotiate at all may end the process.

8. After a settlement has been reached, a party seeks to impose new conditions that have never been discussed.

This will almost certainly cause a failure of the process. It is simply not good faith to withhold conditions that are a part of the settlement until an agreement with respect to its major terms has been reached.

9. Counsel agrees to a settlement without the client’s understanding or consent.

The client should be completely engaged in the process at all times and made aware of all the negotiations. Counsel must be sure that they have their client’s consent before they agree to asettlement.

10. The parties refuse the opportunity to reconvene in the event of an impasse.

Many times it appears that there is absolutely no way a case may be settled. It is all too common that, out of frustration, the parties’ reject the mediator’s invitation to re-convene for a joint session. This additional meeting frequently results in the impasse being overcome.

Ultimately the “basics” (as they say in baseball) can make or break the player or the game.

• Prepare the client for the mediation much in the way you prepare them for trial.
• Consider how you will manage their expectations.
• Give them a realistic analysis of the strengths and weaknesses of their case in advance. Discuss the mediation process in detail.
• Explain the mediator’s background and role.
• Do not rush the process.
• Make sure your client has an opportunity to be heard.
• Discuss the objective factors that support accepting a settlement.
• Have your client sign the settlement agreement.
• Discuss the progress made if the case does not settle.

All clients are emotionally invested in their case. The process of slowly gaining an objective understanding of the strengths and weaknesses of their case will lead to a compromise and ultimately to a settlement.

The process of gaining the client’s acceptance of a compromise begins with the preparation for the mediation. The preparation of the client for the mediation should be similar to the process that one would engage in for trial. Doing a run through of what will be asked of the client if the case goes to trial, makes the entire process much more realistic for them with respect to the risks. The preparation process should include a detailed explanation of how the mediation will be conducted.

Counsel should consider how they will manage their client’s expectations during the negotiation process. The weaknesses of their case and the risks of trial should be explained to the client early on in the process. Further, the client should be advised that the ADR process is not a win lose proposition in the event that the case does not settle.

In all likelihood, you will want the mediator to speak to your client about the merits of the case. The experience and the background of the mediator should be explained to the client prior to the mediation session. You cannot expect the client to seriously consider the recommendations of the mediator if he knows nothing about the neutral’s background. To like accord, the mediator’s role should be explained in detail. It should be made clear that the mediator is not there to decide the case, but to assist the parties in the negotiations and to discuss the risk/reward aspect of each party’s case.

In advance of the mediation, a decision must be made as to whether the client will be present at the joint session. Do not assume that they will be. The practice varies from state to state. If counsel wishes that the client be present, it can be a precondition to the mediation itself. Prepare the client for what they may hear at the joint presentation and if the client has a strong reaction, consider whether they should attend.

During the breakout sessions, the mediator will have an opportunity to speak to the client and develop a better understanding of the case and the client’s position. Careful consideration should be given to the issues you want discussed. If an evaluation is sought, it should be explained to the client in advance that the mediator is going to discuss the risks versus the benefits of continuing with the litigation.

In obtaining the acceptance of risk and compromise by your client, the process must proceed prudently. Both counsel and the mediator, in discussing a settlement with the client, should do so in a manner that is clear and presents the objective factors that mitigate towards the client accepting a settlement. Make sure the client has an opportunity to be heard.

If a settlement agreement is reached, it should always be reduced to writing and signed by the client. When the case does not settle, counsel, with the help of the mediator, can review what has been accomplished and the next steps that will be taken in attempting to reach settlement post mediation.

In summary, gradual acceptance leads to compromise and, ultimately, settlement.

Many cases that come to mediation involve novel questions of law. Invariably, there will be a dispute as to the proper law applicable to the case and the interpretation of appellate decisions that impact upon same. It is common for parties in the context of their pre-mediation brief to cite case law with a summarization of the issues and the ruling of the court along with the formal citation. It is useful for the parties to cite the case law in the context of their brief. However, their interpretation of same is all too often misleading as the view proffered represents the attempt to advance a specific position. The better practice that will enhance your credibility with the mediator, which is to your advantage, is to make a balanced presentation. It is therefore extremely helpful to provide copies of the key cases to the mediator. The opportunity for the mediator to read the decisions and make his own determination with respect to the facts of the case, issues presented, applicability, and the court’s decision and rationale, leads to a better understanding by the neutral of the case law. Again, the goal is to assist the mediator in coming to a well-informed evaluation which ultimately will be to your benefit. In the same way that the narrative in the brief should be balanced, if there is opposing authority, those cases should be submitted and also be distinguished in the brief.

Attorneys, in an attempt to influence the mediator’s view of a case, may often refer to jury verdicts on claims asserted in similar cases. Of greater significance are appellate court decisions which address the issue of what causes of action are sustainable and what an appropriate award would be.

At some point during the mediation, one or both of the parties typically will ask the mediator for an evaluation of the case in terms of the strengths and weaknesses as they relate to a potential verdict after trial. Quite often, parties seek such an evaluation immediately after the joint session has been held. Even assuming the mediator has been properly educated on the facts and issues in the case prior to the time of the session, there is nothing like sitting face-to-face to be able to ask questions in private session. This will give life to the submissions, allow the mediator to develop a far better understanding of your case and give you an opportunity to advocate your position. It is therefore not useful for counsel to request an opinion prematurely at the outset of the mediation. The better practice is to give the mediator an opportunity to speak privately with the parties so as to gain a better understanding of their position, even if this takes several rounds with each side to render an opinion.

Volume is a great teacher. Nothing could have fully prepared me for the bench even though I tried many cases in private practice and spent a great deal of time in the courthouse. The sheer number of cases and the decisions that had to be made in a day dwarfed any type of previous experience. Much in the same way the sheer number of commercial cases that an active neutral mediates over the years dwarfs the number of cases an attorney could ever mediate in private practice. Volume allows you to see patterns that one would never otherwise be exposed to and creates the ability for the introspective neutral to refine his craft and achieve a successful result. While ultimately one would define a successful result as a settlement, I believe that any mediation that brings the parties significantly closer and narrows the issues in dispute or in fact, leads to the conclusion that the case must be tried, is invaluable. Sitting as a Commercial Division judge given the volume of cases on one’s calendar leaves little time for effectively attempting to negotiate a creative resolution in all but the most pressing cases. The beauty of mediating a commercial case is not only the ability of the parties to come together and exchange views, but also for the mediator to assist the parties in crafting creative solutions that are rarely found in the courthouse setting.

Environmental Issues Resolved

When I was a Justice of the Supreme Court overseeing all land use cases in my jurisdiction, I was confronted with a case of epic proportions. One of the largest commercial developments in the history of the venue had been opened in violation of specific environmental conditions imposed by the state. The development was critical to the economic development, if not survival, of a major city due to the sales tax it was expected to generate and the jobs it would create. The Mayor, in what was a political decision, opened the development in contravention of the law which spurred the adjoining communities so affected by the environmental impact to move by Order to Show Cause to close the development. As a Judge, I was now confronted with the prospect of shutting down a project that employed hundreds of people and would generate untold millions in sales tax.

Of the many environmental requirements, the most hotly contested issue was the opening of a secondary access road which would alleviate horrific traffic congestion, create a danger to the public and devalue properties in the surrounding communities. Unfortunately, the State of New York had not completed the required studies for the installation of traffic control devices to allow the opening. I had to put my creative hat on, and directed the mayors of all of the affected municipalities and the County Executive to appear before me to mediate an interim settlement. This would allow the development to remain open for the time being and still be able to address the most immediate environmental concerns.

Sometimes, the obvious solution can be a simple one discovered by a creative neutral (in this case a Supreme Court Justice) that can see beyond the animosity of the parties. Quite simply, I suggested that the city open the secondary access road during business hours and pay the adjoining community for the services of police officers to provide traffic control until the State could complete its process to install permanent traffic control devices which involved a complex system of lights. Development opened, jobs saved and the negative environmental impact avoided. The battle over related issues would continue at a later date. This an extraordinary situation where I, as a Judge stepped into the fray itself to avoid a disaster. I did this on other occasions, as often as I could. However, one person could not possibly solve all of the disputes contained on a court’s calendar that at any given time consisted of some 600 cases. This experience taught me the beauty of the mediated settlement and the importance of thinking out of the box in a creative fashion.

Taking this experience with me, and applying it in my position as a full-time neutral, I am able to resolve cases that seem to have no rational chance of being settled. The following are some examples of where a little creativity by the neutral can achieve a positive outcome:

High/Low Approach Worked

There was a hotly contested complex motion for summary judgment containing close issues of law. The decision was decided in favor of the plaintiff denying the motion to dismiss, but both sides were concerned about the cost of a very lengthy trial without having the legal issue decided by an appellate court. The trial judge was not inclined to grant a stay for the purposes of an interlocutory appeal and there was a valid concern that the intermediate appellate court would follow suit. With the assistance of the mediator, the parties were able to agree to a high/low on the case. In other words, if the plaintiff succeeded on the appeal they would get the higher of the two sums. If unsuccessful, the plaintiff would get the lower amount. The parties submitted the agreement in writing to the trial court. Knowing that the case would now be resolved without a trial, the application for a stay for the purposes of appeal was granted. Ultimately, the appeal was decided in the defendant’s favor but both sides were pleased with the outcome because they had some certainty as to a result and both saved extraordinary trial costs.

Multiple Claims vs. Bankrupt Corporate Entity

Another matter involved approximately fifty commercial claims against a corporate entity that was insolvent. Fortunately, the company had insurance to cover the losses that were sustained. Unfortunately, while that coverage was in the millions, it was not sufficient to cover the sum total of all the claims. The insurance company had wisely decided to deposit the money into court and let the supervising judge deal with the claims process. I was the agreed upon neutral for the some fifty matters that were pending in the courts.

After several unsuccessful mediations, a meeting was held with the law firms representing claims that had been grouped together. I made the suggestion that, as opposed to a mediation, which would not prove fruitful, the parties should agree to an expedited arbitration process. The way the process would work is that both sides would enter into an agreement where parties acknowledged that they would not be able to recover all their damages. Instead, they would agree to accept an amount based upon the number of parties who opted into the agreement to arbitrate and the arbitrator’s determination of relative value.

Approximately forty-five of the fifty parties opted into the agreement as their claims had been mired in endless litigation for five years. The concern among the parties was that court approval was required to pay out the monies. That was allayed by two factors. First, as long as the settlements were reasonable, there was no bar to exhausting the insurance proceeds even if some claimants were left without any funds to collect a judgment from. The arbitration award recommended by a neutral who was a former Commercial Division Justice, gave the court confidence in approving the settlements. Further, all parties were given the option to opt in and warned of the potential that their failure to do so might result in the proceeds being exhausted before their claim was heard in court. I set a strict schedule and within six months 45 mini- arbitrations were held in a streamlined process in person, by submission upon agreement and out of state and internationally by Skype. The decisions were submitted to the court as scheduled. After five years of delay, 45 parties were very happy to recover part of their loss within six months.

Interpretation of Commission Agreement

Finally, oftentimes a mediator can be creative and provide what may be an obvious insight that will foster a settlement that would not have been considered by the parties. In a recent mediated dispute over a multi-million dollar commission between a broker and his former employer that involved securing naming rights, the parties were mired in an acrimonious dispute over the amount of the commission due the broker, and whether the commission agreement was in effect at the time of the signing of the agreement. There were also issues involving the interpretation of the agreement’s terms. The naming rights were being purchased by a third party for an amount exceeding forty million dollars. At the time of the mediation, the suit had not yet been filed. It was suggested to the parties that the filing of the suit would generate unwanted publicity and potentially expose the party purchasing the naming rights, to opt out of the contract to which there still was a limited, but valid right. In that event, neither party would be enjoying the benefits of the prospective deal. Viewing things in this new light, cooler heads prevailed and the matter was settled without filing a case in court.

These are just a few of the many examples I can recount that speak volumes about the benefits of mediation in commercial cases. I am convinced that most commercial cases would benefit from parties sitting down face-to-face with an impartial third party to see if they can work out their differences. There is so much to gain when a little creativity is applied and, so little to be lost, when compared to full blown litigation.

The submission of a well-crafted brief prior to the mediation is an excellent opportunity to give the mediator a real preview of your position in advance. It can be used to educate, persuade, and create a roadmap for settlement negotiations. It is to your benefit to submit same as it will save time at the mediation and create an excellent starting point for the mediator to learn about the facts and issues of law in the case. It will also aid the mediator, at least preliminarily to develop an initial evaluation of the strengths and weaknesses on both sides. The brief can be an important kick start to the negotiation process. For all of these reasons, the briefs should be exchanged with opposing counsel prior to the mediation.

It is this last point that merits discussion. Is it to your advantage to exchange the brief? In the opinion of the author, you are always better served by doing so. It is common to receive briefs with the cautionary words “Confidential – For Your Eyes Only.” It almost seems that the mediator has entered the world of James Bond and has become a member of her Majesty’s Secret Service. In the majority of cases, there is no need for this, particularly in cases where the parties have completed discovery and/or dispositive motions have been submitted or decided. What often occurs is that the entirety of the contents in the so-called “confidential” mediation brief is discussed openly in the joint session, thereby negating any reason for not exchanging it. In the situation where one side exchanges the brief and the other side does not, feelings of distrust and antagonism arise on the part of the party who did exchange. This is not of benefit to the process and starts things off on the wrong foot at the outset of the mediation.

The reason often put forth by counsel for not exchanging the briefs is usually due to tactical reasons pertaining to information that they do not wish to disclose to their adversary. If counsel possesses information of such significance, it would not be wise to put it in writing under any circumstances. Exchange your brief and convey this information to the mediator privately in the first breakout session with the caveat that it not be divulged to opposing counsel. The ironic aspect of this type of situation is that if this information is of such strategic importance and it cannot be used by the mediator in the course of the negotiations, of what use is it any way? The one scenario where it may be useful is where it is being conveyed to the mediator with the idea that, at some critical juncture, it may be used to overcome the resistance of the other side to compromise. Also, sometimes the parties will seek the opinion of the neutral with respect to the relative merits of withholding or disclosing this information.

Ultimately, most often it is to your benefit to exchange your mediation brief with your adversary. In order to reach a settlement of any case, you are going to have to convey information to your adversary to allow him to justify changing his position and making compromises that would not otherwise be made.

During the course of the private breakout sessions with the parties, the mediator is able to engage in a more candid discussion with counsel with respect to their case and their belief as to its strengths/weaknesses, and how they will likely address the opposing party’s case at the time of trial. It also gives the parties the opportunity to disclose information which is being withheld. Quite often the pre-mediation briefs do not contain key arguments or evidence that an attorney believes strengthens or potentially weakens their case. Often critical evidence or legal/factual arguments are withheld for a tactical advantage and are not referenced in the mediation brief or at the joint session. If this is the case, counsel must make clear that the mediator is not to disclose this information. The private session gives you the opportunity to engage in a dialogue with the mediator and answer questions that have arisen from the submission of the briefs and the joint session. A benefit to this dialog is that the mediator may often have insights which the parties have not considered. Mediators will withhold same and refrain from posing questions in the joint session that may adversely affect a party’s position.

The opportunity to speak with the client, whether an individual or corporate representative in private session is an excellent opportunity to favorably influence the mediator in giving an evaluation. In a case where the client is an individual, particularly if the client makes a good appearance, this process may be more informative than all of the briefs and the discussions had by counsel. It gives the mediator a significant opportunity to gain some insight as to the type of witness the client will make. This meeting also allows the mediator to gauge the willingness of the client to compromise, the emotional investment of the litigant in the case, and an assessment of the client’s understanding of the mediation process and the issues attendant thereto, which all may in some way affect the mediator’s evaluation.

The point of the foregoing is not to rush the mediator into giving a premature evaluation of the case before he has developed a complete understanding, to the extent possible, of all of the factors affecting same. It is a rare case where counsel for the parties will agree in whole with the evaluation given by the neutral. As a mediator it is important to stress to the parties that the evaluation is given with due respect to the fact that their view of the case may differ significantly. This is particularly important if counsel chooses to have the client present when the evaluation is given. This is the point in the mediation where diplomacy on the part of the mediator becomes paramount. It is important, whether counsel likes or dislikes the opinion of the mediator, that the opinion be given due consideration. The mediator must be careful not to give the impression that he is taking sides, and the evaluation should be delivered in as neutral and respectful manner as possible. A good mediator will provide counsel an evaluation which specifically cites objective factors supporting same. Counsel should engage in a meaningful discussion with the mediator on the points where they agree as well as disagree.

Finally, asking for the mediator to give an opinion in the presence of all parties is usually a mistake. While on occasion due to the peculiar facts of the case all of the parties may elicit an opinion while in group session, as a general rule this is not effective, and can lead to difficulties in settling the case.

Here are some do’s and don’ts which lead to a more effective joint session of your mediation: Do engage in a realistic discussion of the strengths and weaknesses of your case.

• Do not spend time posturing to impress or intimidate.
• Do recognize that every case is unique.
• Do not lump your case in with similar matters that may have relevant differences. Do engage in a give and take of views.
• Do not rush the discussion in the joint session.
• Do take the time to listen to the other side.

No two cases are the same. The joint session of the mediation is the best opportunity for the parties to speak face to face and engage in a realistic discussion of the strengths and weaknesses of their case. Counsel is best served by engaging in an objective, straight forward discussion of the uniqueness of the case at hand.

It is commonplace for counsel to extol the virtues of their own legal skills in achieving amazing results for their clients in other matters. As always past performance is not predictive of future results and what is telling is that such an advocate never speaks about their losses. Time expended in this manner is usually nothing more than egotistical posturing, often designed to intimidate but more likely to aggravate and impede the process. Engaging in this type of discussion is simply a waste of time. Counsel is better served by engaging in an objective straight forward discussion of the uniqueness of the case at hand.

Sometimes counsel, on an anecdotal basis, develops guidelines with respect to liability and damages in certain types of cases. It is of greater importance to address the application of certain similar facts to rulings on dispositive motions, evidentiary rulings during trial or on other significant legal issues decided on appeal.

The joint session should not be rushed. Many times the parties do not want to engage in a process where their views are exchanged in detail with the other side; or they want to cut the joint session short and move as quickly as possible into caucusing privately with the mediator. What the parties often fail to understand is that the mediation process is about taking the time to engage in a “give and take” and to exchange views with the other side. It is to the benefit of all parties to have a good understanding of the other’s position. Often the parties in the joint session will repeat their arguments over and over again in many different ways. While, at times, this process may become tiresome, in actuality, there can be a lot of value in it. Despite the redundancy, new facts may come out and a better understanding often comes about as to the other party’s position.

So take the time to really listen and do not rush the joint session. So if you want to have a useful joint session, turn off the rush to get to the end, and turn on the ability to take the time to mediate.

INTRODUCTION

There is no better way to settle your case than through mediation. The purpose of this article is to make suggestions to maximize your opportunities for success. As a full-time mediator, by virtue of sheer volume, you are involved in the resolution of more cases in one month than most attorneys are in their entire career. Because of that experience, you begin to observe distinct patterns that serve as a guide to what counsel can do to make the most of this process. Many lawyers and their clients do not fully understand the process, which leads to numerous mistakes that often doom their best efforts (and those of the mediator) to bring the case to a successful resolution. This article will focus on the process itself, what can be done to improve your chances for success, and what mistakes may be avoided.

PREPARING FOR THE MEDIATION

The success or failure of the alternative dispute resolution process is all too often predetermined. Whatever the nature of the case, counsel’s preparation will often govern whether the process is successful or not. The parties should carefully review the mediation agreement and any written guidelines presented by the mediator. The strategy should be to position the case for settlement in advance. One of the first questions I ask the parties is: “What gave rise to the mediation?”Surprisingly, most parties often give answers like: “I thought it would be a good idea”, or “The other side wanted it.” Often times, the latter assertion is then denied. This belies the fact that often insufficient preparation and thought is given to the process in advance. The preparation for mediation should be similar to the preparation that one would engage in for trial. Know why you are there, understand where you want to finish, and make sure your clients are well informed.

Creation of Parameters

Frequently, the parties do not discuss any parameters for the mediation in advance. The initial session then becomes bogged down by the issue of what the demand/offer was prior to the time the parties came to the mediation. This can often lead to a breakdown of negotiations and ill will.

Parties should not agree to mediate unless they have a good faith belief that the case has a chance of settling. While this is not an exact science, specific demands should be communicated in advance, along with any offers made in response. The parties often come to the mediation where no demand or offer has been communicated, there is a disagreement as to same, or off-the-record discussions have led to complete confusion regarding the parties’ positions. The best way to avoid this is with clear communication, preferably in writing, confirming discussions of the parties. At minimum, this will avoid situations where the defendant is hearing the plaintiff’s demand for the first time during the joint session of the mediation.

Demands communicated in advance are often met with a refusal to make a counter offer unless the demand is immediately reduced. Such a position by the defendant should be communicated prior to the mediation. The process should not be utilized to bring a party to the table where there is no intention of responding to demands, and with the hope that the mediator will compel the other side to reduce same without an offer. There is also the scenario where a demand has been communicated in advance by the plaintiff only to have it increased at the outset of the mediation. Often it is the parties’ expectation that the mediator will somehow be able to take a case where any or all of the above risk factors exist and bring it under control. While this may be possible, conduct such as this should be avoided.

Finally, if a demand has been made prior to the mediation and a significant factor comes up that may impact the negotiations (such as a change in the claim for damages), this should be communicated in advance. It will give the defendant the opportunity to re-evaluate its settlement position, and to determine whether the mediation should proceed.

Submission of Briefs

In the majority of cases, briefs are submitted. Under most mediation agreements the parties are free to submit same confidentially for the mediator’s review alone.

Counsel often do not read the mediation agreement (which sets forth the rules for submissions) and are taken by surprise when a party has appropriately given the mediator a confidential submission.

Unless you are conveying critical information that you wish to withhold for trial, you should exchange the brief with the opposition so they might better understand your position in advance. Care must be exercised in communicating critical information that is being withheld for trial even when this information is being provided to the mediator. Further, despite the rule allowing confidential submissions, when one party has exchanged their mediation brief and the other has chosen not to, it tends to breed distrust.

Briefs frequently resemble motion papers I reviewed as a judge. Many are completely redundant and premised upon the assumption that the more an argument is repeated the more likely it will be accepted. This should be avoided. The brief should be simple and clear, and designed to educate both the opposition and the mediator as to the basic principles of your position. Parties often submit kitchen sink attachments containing exhibits that are not necessary. This should also be avoided. The further in advance the brief is submitted the better for all concerned, as this allows sufficient time for review and consideration.

Presence of the Client at the Mediation

Counsel frequently face the decision of whether or not the client should be present at the mediation. Whether the client is the CEO of a corporation or someone suing in their individual capacity, most have an emotional investment in the case. I’ve mediated cases in numerous states including Connecticut, Florida, Illinois, Massachusetts, and Nevada, where it is expected if not required that the client be present. Although this is not the case in New York, the person with the ultimate authority to settle the case should be present. It is important for the party to be present during settlement discussions to better understand same, and for the mediator to speak directly with them if needed. If your client is going to testify at a trial and makes a good presentation it behooves counsel to have them present to meet with the opposing party’s representatives.

Counsel should never assume that the party will be present. If this is a condition to the mediation, it should be set forth in the mediation agreement as it will avoid one of the parties walking out in the other party’s absence. Attorneys often do not bring the client as they fear they will be antagonized by the process. While this is understandable, the benefits usually outweigh the risk. Further, when one side brings their client and the other does not, it creates an issue of trust based on whether counsel has the authority to settle the case.

Preparing the Client

Preparing the client for the mediation itself must be approached with the same seriousness as preparing them for trial. Assuming the client has limited or no familiarity with the ADR process, you must explain why the mediation is being conducted, the benefits of the alternative dispute resolution process, what the role of the mediator is, how the mediator is selected, and how mediation is conducted. Many clients equate mediation to a trial; in other words, a win-lose proposition. They do not clearly understand the advantages of the process as opposed to the court system, view the mediator as a judge as opposed to a facilitator and negotiator, do not understand how the mediator is selected, are not familiar with his or her background, and do not understand how the process itself is conducted. All of these areas should be discussed with the client in advance.

Counsel must explain to the client that everyone will have to compromise their settlement position and that even if both parties make concessions that does not mean that the mediation will result in a settlement. If the client is properly prepared and understands the process it makes it much easier for the attorneys to gain their acceptance of a compromise, and, if called upon, for the mediator to discuss the merits of the proposed settlement with them.

Demonstrative Evidence

The complexity of the case will determine what demonstrative evidence may be brought to the mediation. Bringing exhibits that have been prepared for presentation to a jury conveys the impression that the party is serious about trying the case if the mediation does not result in a settlement. While this may or may not impress, in complex cases I have seen the effective use of same and the use of PowerPoint presentations that organize and simplify the many components of the case for the purposes of presentation at the initial joint session.

JOINT SESSION

The joint session is the first opportunity to present one’s position in person to both the mediator and opposing counsel. This is rarely waived, although there are instances when the attorneys have had such extensive pre-mediation negotiations that they ask to split up immediately and talk to the mediator separately. There is also the rare circumstance where the hostility between the parties is so great that they waive the joint session, as they do not want to be in the same room together. This leads to the question as to why they agreed to the process in the first place.

Presence of the Client during the Joint Session

If the client is at the mediation, whether they should be present during the joint session must be decided. Outside of the State of New York, the presence of the party is expected, if not mandated, at the joint session. In the State of New York in many cases corporate representatives will be present but the individual plaintiff will not be. In making a determination as to whether the client should be at the session, there is usually a direct correlation between emotional involvement and the likelihood of the client becoming antagonized by hearing opposing counsel’s opening statement. If there is any chance of this, it is my opinion that they should be excluded from the joint session. It will be more difficult for counsel to get the client to compromise if they feel that their veracity is being questioned. However, in some cases having the client present can be useful. Hearing from the opposite side the basis of what their position is can lead to better understanding of the weaknesses of their case, as long as this is presented in a respectful manner.

Frequently when the client is present during the joint session, counsel may engage in grandstanding. Understandably, it is necessary to make one’s client feel that their counsel is a true advocate for their position, but an overzealous presentation can antagonize the opposing side and inflate your client’s expectations with respect to settlement. A careful balance must be struck in this regard.

Communication of Settlement Position

Many people do not want to confront another person directly when involved in a real conflict. However, the person on the other side of the table is the one you have to convince to compromise. It is more important that the communication go back and forth directly between the parties during the joint session. You will have ample opportunity to lobby the mediator during the break out session. Parties come to the mediation with the assumption that after years of litigation they understand the position of their adversary and vice versa. While this is sometimes true in part, it is never wholly true. The factors that a party believes supports their view of the dispute are sometimes being heard for the first time by the opposing party. It is far better to address the opposing party directly and to explain your position, than to attempt to make what becomes an oral argument to the mediator as if he were a judge deciding the case. Again, a mediator understands that attorneys are attempting to sell them on the strength of their position so that he or she will push the opposition towards a settlement, but this is not necessary, as the mediator will do this as a matter of course. The human dynamic requires that communication take place between the parties. The attorneys most adept at settling cases understand this fundamental fact. It is particularly useful to end your presentation by saying that you are there in good faith to settle the case, to listen, and to give fair consideration to the position of the other side. While this may sound trite, it is critically important as it sets the tone for the continued negotiations.

BREAK OUT SESSIONS

The Client and the Mediator

One of the first things counsel must consider is whether the mediator should meet with their client and at what point that should occur. From my experience, if the client is not present at the opening session, the first meeting should take place as soon as possible thereafter. It gives the mediator the opportunity to explain the process, his role and experience, and how the day will progress. The mediator will have some basis to assess how the client may appear before a jury and it is an opportunity for the mediator to build a rapport with the client in the event that the mediator must speak to them later in the process regarding proposed offers. At the same time, counsel should use the mediator to emphasize that both sides will have to engage in compromise to achieve a resolution. The meeting with the mediator also gives the client an opportunity to tell their story. From my experience as a Supreme Court Justice, one of the biggest complaints in court made by litigants is that they were never heard before entering into a settlement agreement. The ability to tell the mediator their version of the case is unique to the mediation process and one of its most valuable aspects. It gives every litigant what they want, which is a chance to be heard by a neutral party and voice their feelings. This can result in the client becoming more willing to compromise, and it also gives the mediator a better understanding of the case, which can become critical in facilitating the negotiations.

During the course of the breakout sessions, the parties should consider using the mediator to speak with their client to explain what has transpired in the process and what factors should be considered in making a decision with respect to the settlement. What is not advisable is to have counsel attempt to bolster what the mediator is saying and strong-arm the client in the mediator’s presence. It often embarrasses and angers the client, and defeats the purpose of having a neutral give a candid opinion on the status of the negotiation. It is ineffective for the mediator to push the client hard as people generally just do not respond to that sort of pressure. My tactic is to suggest to the client that they are well represented and should give the advice of their counsel serious consideration. Their attorneys are then in a position to use the factors explained by the mediator to move the client towards acceptance of a settlement that they believe is advisable. No matter how many times you tell the client that you are not a judge, they view the mediator as same and expect you to be fair, impartial and level.

Clarity in Communication

In communicating with the mediator, counsel should be exceedingly clear on the message that is to be conveyed to the opposing party. I take great care in clarifying what it is that counsel wishes to convey to the opposition. If you are not clear, and the mediator is not clear, this will result in a serious misunderstanding that can lead to the breakdown of negotiations. I will often pose the open-ended question of what it is exactly that counsel wants me to communicate to the opposing side. The response often heard is “Phrase it in any way you deem appropriate.” Mediators will routinely do this but it may become a dangerous proposition for both the party and the mediator. Attorneys fixate on the words of the mediator and exactly what is being said. They often write down exactly what was said by the mediator and convey it to their clients. Any error in this fashion on either side can compromise the negotiation. Great care then must be taken in exactly what you intend to communicate through the neutral, so that he may exercise his discretion accordingly.

There reaches a point in every mediation where the mediator has a clearly defined sense of what each party is willing to do to get the case settled, but is not authorized to communicate that information in a specific way. The techniques that I use to convey this message are tailored to each mediation. While this is always useful when the parties are getting close to a resolution, it is important for the mediator to make clear that this is not an offer but a range of discussion. The parties usually read between the lines, but again, exercise care in how you authorize the mediator to communicate generalized positions.

Finally, if you suggest a proposed settlement to the mediator, be sure you have the approval of your client. You compromise your credibility and that of the mediator when opposing counsel has agreed to the proposal only to find out that your client will not consent to same.

Evaluation by the Mediator

During the course of breakout sessions, attorneys on both sides want an evaluation of the case. It is better to give the mediator the opportunity to speak to the clients and go through several breakout sessions to fully understand the respective positions before giving an opinion. Parties must remember that while a mediator will apply significant pressure to each side to produce a settlement, he is not an advocate for either side, but an advocate for compromise and resolution. The mediator is tasked with maintaining a position of fairness while attempting to get the parties to understand the position of the other side. This is the most critical part of the mediator’s function. The position advanced during the break out sessions becomes more significant than what was advanced in the joint session. There is an evolution in the negotiation process where a good mediator will become aware of factors that both sides have not considered, or lesser factors that take on a greater significance. The parties should make use of this time to narrow the points they’re trying to make and to communicate in a structured fashion. Finally, if you ask the mediator for an evaluation, please listen. A mediator is often confronted by a party who is not hearing what they want to hear and refuses to consider it. If you ask for an opinion at least give it consideration. Further, whether asked for an evaluation or not, a mediator is going to discuss the factors that you should consider in settling the case. Again, listen, whether or not you like what you are hearing.

Effective Use of Time

The greatest ally of the mediator and the parties during the course of the mediation is time. While my personal style is to take control of the mediation and to move it quickly and efficiently, there is no doubt that the parties need adequate time to consider the demands and offers being made and to be given a real opportunity to reflect on same. Parties completely wedded to their positions are more likely to compromise if given sufficient time to consider the demand or offer being made. There is often “buyer’s remorse” at the end of mediation, but this happens less often when the parties had adequate time to make their decision. Additionally, if a party has to capitulate, the “loss of face” is a problem the mediator must manage. The more time that passes, the easier it becomes for a party to soften their position.

IMPASSE

Breaking the Impasse

The negotiation process should always be one of movement. I often hear the excuse that another offer will not be made because counsel does not want to insult the other party. As an attorney once said to me: “If they keep insulting me, we will probably get the case settled.” Even if the concession is slight, this will keep the dialogue moving forward. In many cases the prospective “insult”continues the process and leads to a dialogue where a settlement is reached.

When the parties reach an impasse in negotiations, it becomes incumbent upon the mediator to slow the process and encourage the parties to continue negotiation. Counsel will often become angered by an unacceptable move late in the mediation and will want to walk out without further discussion. Often this is an egocentric knee-jerk reaction, which results in the lost opportunity to take one last crack at the negotiations which may often break the impasse and lead to a settlement.

No matter how effective the mediator is at conveying the position of the other side, a filter is inevitably created. No matter how clear the mediator may be in transmitting the position of the parties, nothing is as effective as the parties speaking directly. At this point, the parties should follow the mediator’s suggestion to reconvene in a joint session and talk face to face. In observing the‘impasse process’ at countless mediations, in my experience it may be broken simply by bringing the parties back to the negotiating table and insisting that they continue to talk. Communicating face-to-face will often soften resistance. The important thing is to accept the mediator’s recommendation that you meet in person and not merely walk away from the bargaining table.

In the event the impasse cannot be broken, if the neutral does not do so automatically, the parties should request the mediator to summarize the status of the negotiations for two purposes. The first is to ensure that the parties are clear on what the final demand and offer is. It should also be made clear that during the negotiations any generalized suggestions as to range of settlement are just suggestions, and not demands or offers. Second, the parties should be reminded of the confidentiality provision contained in the agreement to mediate, and that unless consent is given the negotiations are not to be discussed before the Court. Obviously, this is something that a mediator cannot enforce, but parties should be reminded of their ethical obligation to abide by the terms of the mediation agreement.

POST-MEDIATION AGREEMENT

When the Case Settles

The post-mediation agreement should be executed before the parties leave. It should be reduced to writing and carefully encompass all of the terms of the settlement. While the case may be in litigation, and the settlement subject to the exchange of a satisfactory stipulation of discontinuance and general release, it is the better practice to have the client sign the post-mediation agreement in the presence of the mediator. As discussed supra, upon leaving the mediation, clients often experience “buyer’s remorse.” I know instances where some refuse to proceed with the settlement because of this. The post-mediation agreement serves as a basis to enforce a settlement. It also protects counsel from a client who denies that authorization to enter into same was given.

Many times once a verbal settlement agreement is reached, one of the parties will begin to add conditions to the settlement that were not raised during the mediation process. It begins an entirely new mediation devoted to dealing with terms that were not contemplated. Counsel and mediator should specifically raise the issue of any special conditions before a final settlement is agreed to. However, I have had instances where despite my inquiring regarding same, counsel has withheld terms and conditions that the settlement is contingent upon. To conduct the negotiation in such a fashion is, at minimum, bad faith.

WHEN THE CASE DOES NOT SETTLE

As discussed supra, it should be explained to the client that the process is not a trial, and that this is not a win-lose exercise. One of the reasons to do this is to avoid the client feeling that they’ve experienced a loss when the case does not settle. The mediator and counsel should stress to them the fact that many mediations do not result in a settlement and that it is not a reflection on their case. It is just the position of the parties at that time which cannot be sufficiently compromised to reach an agreement. Counsel must understand the same thing, to wit, not every case can be settled via mediation. However, all mediations are productive even if all they do is open the lines of communication and give each side the opportunity to clarify their position to opposing counsel.

I have never found it to be productive for counsel to end the mediation with their colleagues in a hostile manner. I understand the immense frustration that the parties may experience when a case does not settle or they do not like the way the negotiations progressed. Counsel should commit to keep the lines of communication open and hopefully in the future the dialogue can be continued. It never serves a party to leave mediation in a hostile manner where words are exchanged that can never be taken back. The mediator must keep this phase of the process as productive and calm as possible by attempting to show that, despite the fact that the case is not settled, progress has been made. My practice is also to follow up on every case that I mediate which does not settle. I offer the parties the opportunity to continue negotiations informally, without further expense. My experience has been that by reaching out to the parties after they have had time to absorb what took place during the dispute resolution process, it will trigger further negotiations that in the majority of times will lead to a settlement. Counsel should always avail themselves of any offer by the mediator to continue negotiations.

CONCLUSION

It is always my hope that every case that I mediate will settle, but that is not realistic. This article cannot in any way encompass all of the numerous factors that will lead to a resolution at mediation. Hopefully it will serve as a starting point to lead counsel through the process, and hopefully maximize the opportunity for success.

In the majority of cases, the parties to mediation ask the neutral for an evaluation of their case. This will encompass an analysis, inter alia, of the factual allegations, defenses, and issues of law, motion practice/decisions, venue/jury pool, and an evaluation with respect to jury verdict potential. The mediator will be making an assessment of the evidence to be presented and will give an opinion with respect to the credibility of potential witnesses based upon a variety of factors, including but not limited to, interest in the outcome of the proceeding, strength of deposition testimony, and whether such testimony will be supported by documentary and real evidence. It is to your advantage to give careful consideration as to the information provided to the mediator before the session.

The goal of counsel in advance of the mediation should be to educate the neutral as much as is reasonably possible with respect to the status of the litigation, facts of the case, the relative positions of the parties, issues of law, and damages sought. It is to your benefit that the mediator be properly informed prior to the mediation as it will lead to the savings of significant time during the course of the session, a better understanding of your position and allow the mediator to make a reasoned evaluation of the case.

The process of ensuring that the parties will get an informed evaluation begins with the brief submitted prior to the mediation. In any complex matter, the parties should submit a mediation brief to give the mediator an opportunity to analyze the matter before the mediation session. It is to your benefit to submit your brief well in advance of the mediation to give the mediator ample opportunity for review and to consider the arguments of the parties. The brief should contain a summary of the position of the submitting party with respect to the issues in the case. The submission of pleadings, exhibits, motions, decisions of the court and deposition testimony alone without a summary is not an effective way to educate the mediator as to your position which is to your advantage. The brief should incorporate exhibits which are critical to the understanding of the case. The exhibits submitted should be carefully referenced in the summary in the brief itself and relevant portions should be highlighted.

All too often, the briefs submitted prior to mediation are pure advocacy without a balanced reflection upon the potential evidence to be presented if the case were to go to trial. In an attempt to persuade the mediator as to the efficacy of the party’s position, the brief becomes unduly lengthy and redundant. It is to counsel’s advantage to submit a clear and concise brief which represents a balanced presentation of the facts that not only stresses the strengths of your case, but also acknowledges its defects and addresses them. While it may seem counter-intuitive, this is to your benefit. A balanced brief will enhance your credibility with the mediator. This is similar to the jury selection process wherein a knowledgeable trial attorney will make the jury aware of the problems in their case in advance so to avoid credibility issues as the negative evidence is presented. By the same token, this gives the mediator the opportunity to consider both the strengths and weaknesses of your case and to understand how you are going to address the weaknesses. By doing this, you give the mediator time to consider these issues in advance of the mediation. Additionally, you gain credibility with the mediator by presenting a fair view of the case and one that is not slanted solely to your side.