The Mediation Process – The Mediation Session
One of the most essential tasks for a mediator is to tailor the mediation session to the specific needs of the case. Mediation is not a pair of socks where one size fits all—or even most. By the time the parties arrive for the mediation, I have learned enough about the dispute to design the “game plan” of choice for conducting the session. I will discuss that plan with counsel before we begin, and modify it or not depending on those discussions. What follows is a general description of my procedures and the variables involved in the choices.
Assuming that the mediation session will be held in my office, I always offer in advance the opportunity for counsel to arrive early for the purpose of meeting either with their clients, or each other if there is a need for that. We have ample space to afford privacy for those purposes, and if nothing else, participants can become familiar with available electronic technology for displays and WiFi connections.
Usually, I meet with the lawyers first, and give them an opportunity to tell me anything in the way of nuance that might not be in their memoranda. This session gives me a chance to ask questions I might have about the materials they have already submitted, or to clear up things about which there might be some confusion.
I try to have a frank discussion with the lawyers about whether or not there is a need for prepared opening statements. There are pros and cons to these openings, because lawyers rarely heed my admonition to leave advocacy at the door to the mediation room. Too much advocacy can harden positions at the time when we are trying to soften them. On the other hand, sometimes clients need to hear their attorney “put on a show” and they will feel they are not getting the representation they deserve if they do not get it.
In the latter regard, it is not unusual to learn that one of the prime reasons for holding the mediation in the first place is that counsel needs help in managing the expectations of a difficult client.
On the other hand, assuming that counsel are able to state their positions in a manner which does not inflame the situation, the opening statements can help frame the areas of agreement and disagreement, and as importantly, can give participants who have not met each other an opportunity to see each other and evaluate what they have to say. For example, an insurance adjuster who is present for the mediation and is expected to write a large check before the day is over can get a look at the plaintiff, and have a conversation that is more valuable than a cold reading of a deposition transcript. Usually I leave the decision of whether or not to conduct opening statements to the lawyers. In the event openings are conducted, I always ask for the participation of the parties themselves, and give everyone in the room a chance to add to what the lawyers have stated.
Whether or not there are to be opening statements, I usually give an introductory statement of my own. I want the parties to know who I am and what my experience is. I define the goal of the mediation to be a compromise settlement of the litigation, and I explain that my role is to facilitate that settlement, not to impose it on anyone. In that regard, I often tell the parties that what I think should be done does not really matter unless they want it to. I am not a judge and I do not get to decide who wins or loses, or how much a case is worth.
Most importantly, most of the mediations I conduct are not mere settlement conferences where lawyers need an additional pair of eyes. I encourage the parties to speak, whether in joint sessions or privately, and I find that the ability to participate to the same degree as counsel invests the parties and keeps them flexible. I also remind the participants that the process is privileged and confidential by statute, and by agreement, and I encourage them to put everything out on the table without fear of their comments coming back to bite them later.
Further, I explain that we will be spending most of the day in separate rooms, and that I will be going back and forth with new demands, new offers, and the like until we arrive at a settlement or conclude that we cannot get the matter settled. Finally, I make it clear during the joint session that I have read all of the materials that have been submitted, and usually by pointing to the pile of memoranda and records, I can convince the parties that I am familiar with the facts and legal analysis of their case.
By the time we adjourn the initial joint session, it should already be apparent whether, if there are multiple defendants, they are aligned with each other or antagonistic. If the latter, we afford them separate rooms.
The obvious question once the parties are separated, is where to start. If prior to the mediation no offers have been made to plaintiff, I would usually start with a discussion with the defendant. If there has been a history of negotiation prior to the mediation, the parties will make it known, and it will not be difficult to determine in whose court the ball is. The initial objective is always to try as quickly as possible to determine the real range of settlement positions and to narrow the dispute as quickly as possible. How to get that done often depends on the personalities of the lawyers involved, their styles, and their familiarity with opposing counsel and with me as a mediator. I find that lawyers who have experience mediating with me will often tell me what will and will not be possible quite early in the game, and will tell me what they can and cannot do, and why. Obviously, some lawyers prefer to keep things very “close to the vest” for a longer period of time, and for reasons of their own take initial positions that I can clearly tell will not persist throughout the day.
The commitment I need to make clear to counsel is that I will only transmit what I know to the other side if I am authorized to reveal it. If counsel are sure that I will honor this commitment, they will reveal more and do so more quickly and if nothing else, I can use the information to shape positions on the other side, assuming they are reasonable.
My job as the mediator is to go back and forth between the parties with increased offers and lowered demands. Sometimes gaps between the parties become narrowed quickly. At other times, things proceed more slowly. If a defendant believes that plaintiff’s opening demand is “outrageous” as I often hear, the opening offer is likely to be equally unreasonable. That is why I caution the parties to give the process the time it deserves so that once flexibility is exhibited, it will be matched by the other party.
While parties always ask my opinion about offers, and what to do next about a new demand, I do try to stay away from an ultimate recommendation on the settlement value. I try to have the parties reach an agreement rather than tell them what I think is the reasonable value of a case. I do my best to point out the strengths and weaknesses of a plaintiff’s case, or the defense to it, including these days, a frank discussion of the enormous cost of taking most cases to trial.
While I do not usually apply pressure to a party to accept an offer or make a higher offer, I will do so in the rare case where I believe that party is making a serious mistake. It is not that uncommon for a lawyer at the mediation to need help from the mediator in lowering client expectations when they are set too high.
The most important comment I can add to this discussion is that the process takes some time to develop, and at least at the beginning, I try to spend as much time as possible communicating with the parties themselves, sometimes even more so than with the lawyers. I believe I need to spend the time to develop credibility with the parties so that towards the end of the process, my suggestions will carry greater weight.