Overview of Mediation
Mediation Defined
Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his own judgment on the issues for that of the parties. Mediation, then, for our purposes, is the familiar negotiation process with the addition of an impartial third party who at a definite time and place, with all parties present, attempts to assist the parties and attorneys in arriving at an agreeable settlement. Mediation can occur at any stage of a dispute, that is, before suit is filed but before discovery is accomplished, at any stage during discovery, and even after trail on the merits and judgment including while the case is on appeal.
In many states, mediation is now provided for by statute and the court is given authority to require the parties to engage in the mediation process. In analyzing the differences between litigation and mediation, it is helpful to understand that, while still premised on liability, there is an additional focus on the "needs" of the parties, that is, those interests that, once recognized, can serve as an additional basis for resolution of the dispute.
Initiation of the Mediation Process
Whether the court orders a pending case to mediation or whether it is initiated by the parties voluntarily, a mediator must be selected, a date, time and place agreed upon, the mediator's fee stipulated or agreed to, and arrangements made for the clients to attend the mediation. The lawyers must then prepare to ably represent their clients in the mediation process.
Preparation of the Client for Mediation
Theoretically, a client represented by counsel need not actively participate and would simply be communicating with counsel in private. However, some mediators strive to involve the clients in discussion in the private caucuses, a practice which most lawyers do not object to, provided they have prepared their client in advance of this happenstance. Participation by the client does have a therapeutic effect in that it allows the client to get the matter off his chest, do some "venting." Of course, the mediator would not directly ask a client what his "bottom line" is or engage the client in making offers or rejections, but rather the participation by the client would be more on a fact-finding basis and allowing the client to vent.
Again, the client must be prepared in advance for this eventuality and the attorney should be acutely aware in advance of any problem areas that might arise. It is suggested that a specific pre-mediation conference be held with the client in the lawyer's office and everything from dress, demeanor, settlement strategy and the evaluation of the case preparatory to mediation should be discussed. The client should be shown something like the mediator's "Opening Statement" script that is contained in this chapter, so the client will be fully aware in advance of what to expect. Preparing the client for mediation should be treated as importantly as preparing the client for deposition or for trial. A checklist for conducting a pre-mediation conference with the client has been provided in the checklists of this chapter.
Essential Requirements for Mediation
It is generally recognized that the three most important requirements for mediation are that the parties and their attorneys agree to make a good-faith effort to arrive at a settlement, that the clients themselves be present (and in the case of a corporation, a decision-maker be present); and that adequate time be set aside for the process. Many cases can be adequately mediated in a couple of hours, others in half a day, and still others require at least a full day. While one should never allow an extended mediation to wear down one's client, it is sometimes helpful to keep the process going while the momentum is up and allow the mediation to continue into the evening hours.
The Role of the Mediator
Although the client's presence and the decision-maker acting in good faith with time allotted for the process to take place are essential, a good, experienced and well-trained mediator can make the difference between arriving at a settlement and not arriving at a settlement. Experience and maturity seem to be even more important than training, and subject-matter knowledge, while not absolutely essential, is always helpful. The requisites of a good mediator are set out in detail in the checklists section of this chapter entitled "Mediation," but suffice it to say, he or she must have patience and endurance, must be a good "psychologist" and must establish credibility with the participants. The mark of a good mediator is one who can keep the process going, keep the momentum up and be able to get around what, at times, seem like impossible impasses. There must, of necessity, be a spirit of optimism on the part of the mediator and he or she, without misleading the participants into false optimism, must infect the parties with a similar spirit of optimism.
Necessity for Mediation
As trial lawyers, we negotiate many cases without the need or benefit of a mediator, and have done so for years, several things occur in the mediation process that, while they might occur without mediation, would not occur when they do, perhaps not as successfully, and certainly not as efficiently. In multi-party cases, for example, it is always difficult to get everybody on track and focused on the particular case at the same time. Thus, the negotiations necessarily drag out over weeks and months. Also, when you are negotiating without the benefit of mediation, it frequently is a time when the other party or parties have not had a chance to adequately evaluate the case or have not focused on it for that purpose and have perhaps not had the full benefit of the opponent's views on the value of the case.
Mediation brings all of these things to a head at one time when the parties are present, focused on the case, and have made an evaluation of the case for an agreeable range of value. With the exception of an involuntarily court imposed mediation, they have presumably committed in good faith to the settlement concept and process.
When Mediation Should Occur
Despite the benefits of mediation as discussed in the preceding paragraph, if it occurs too early in the life of the case, the parties and the attorneys will simply not have an adequate opportunity to investigate the relative merits of the case and to have arrived at an evaluation. When early mediation is anticipated and is to be attempted, as much information as possible must be gathered and, if need be, the willingness to participate in mediation must be conditioned on being provided certain information that you would ultimately get during the discovery process, so that an adequate evaluation can be made and the likelihood of a successful mediation enhanced.
How to Effectively Represent Your Client in Mediation
The mediation process lends itself to advocacy just as does the courtroom. The attorney must persuade the other side as to the merits of value of the case. This may be done by using short video excerpts in a presentation during opening statement, by the use of charts, models, blow-ups, and any other demonstrative evidence that might be persuasive in a trial. In this case, you are not persuading a jury, but you are attempting to persuade the other side of the value of your case, and at the same time you are attempting to make the mediator understand the strengths of your case so that the mediator can help dispel any fantasies that the opposing side is laboring under. After all, the mediator's job is to inject reality into each side's position. Typically, a full opening statement focusing both on the opposing side and the mediator is made. One must make a final argument in his opening statement without the other side feeling like a final argument is being made.
A very important thing to avoid is leaving your client alone, unrepresented, without the other party. For example, when "breaks" are taken during the mediation, you might leave your client alone where the mediation is taking place or your client could wander away from you. At these times, you client is must vulnerable to intimidation and bullying by the opposing party, particularly when your client is an individual and he or she is suing a larger, more experienced business. Unfortunately, you cannot always rely on the mediator to prevent such incidences form occurring. Therefore, remember to accompany your client everywhere that he or she goes, just as you would if you were in trial.
Selecting a Mediator
What constitutes a good mediator has been discussed above, but the problem is in finding the right person. A good experience with a mediator will lead you back to that mediator again even in a different type of case. Reputation as a mediator, if well earned, should be looked at in the selection process. An experienced plaintiff's trail mediator, if a reasonable and patient person, can make an excellent mediator of a personal injury case. A plaintiff's lawyer or defense lawyer should not hesitate to have a lawyer of the opposite persuasion as a mediator if he or she otherwise meets the criteria of maturity, experience and trustworthiness.
Fees of Mediators
Every practicing mediator has a fee schedule which will be sent upon request and is generally based on a hourly or daily rate with the fee ties to both the number of parties involved and the amount in controversy.
