Preparation for Mediation

As a general matter, the attorneys who appear at mediations should not only have a thorough understanding of the facts and the law, but also should possess good negotiation skills. The best advice I can give to attorneys is to treat mediation as seriously as you would a trial. This means that attorneys need to know the case, the law, the witnesses, and the documents. The attorney's handling of a case at mediation is often seen by the other side as a preview of how it will be handled at trial. Give the other side something to worry about!

A. Selecting the Right Participants

The person or persons defense counsel chooses to bring to the mediation table can easily dictate the outcome of a mediation. (Of course this discussion presumes that defense counsel has control over this decision.) While defense counsel may want to have a corporate representative present who is familiar with the facts of a case, it can be counter-productive to bring an employee, manager or officer who is viewed by the plaintiff as a "wrong-doer" or "co-conspirator." Bringing such a person can have many negative effects on the process, such as:
  • ✓  Putting the plaintiff in a defensive posture;
  • ✓  Appearing to the plaintiff as if conciliation is not the real reason for the defense agreeing to mediate;
  • ✓  Making settlement more difficult if the alleged "wrong-doer" is unable—either for professional or personal reasons—to make necessary
        concessions. (This is particularly true when the corporate representative at the mediation is the implicated decision-maker or actor.)
Another piece of advice concerning who should and who should not be present at mediation, is that in cases where there is an individual defendant, such as in sexual harassment cases with state law tort claims, the accused should be persuaded not to have his spouse present at the mediation. More than one potential settlement has been derailed at mediation as a direct result of a spouse vehemently defending the other, and refusing to allow concessions that might be viewed as an implicit admission of guilt. The individual defendant may not be nearly as vehement in his denials as the spouse may be.

So, assuming the defendant's counsel has a choice, who should he bring to the table? Clearly, counsel must have someone with sufficient authority and stature to send the message that you are taking the plaintiff's claims seriously. Bringing someone who is very low in the chain of command, or has little authority, can have the effect of really "ruffling some feathers." Similarly, ensuring that the corporate representative is not simply someone trying to "save his own hide" will set a productive tone for mediation.

It should be noted that while plaintiffs do not typically have the same choices regarding who should attend the mediation, the issue does sometimes arise. At times, plaintiffs want to bring someone with them either for moral support or to assist in necessary decision-making. In my experience, defendants rarely object in principle, but may want to exclude individuals who are potential witnesses from the joint session, especially where that person has not yet been deposed. Counsel should consider carefully who this person is and what role he will likely play. Again, it is not always advisable to have spouses present—particularly in the joint session—where sensitive issues may be discussed, and where accusations are sometimes leveled.

B. Preparing Substantively

It is critical to a successful outcome at mediation to do more than just explain the mediation process to your client. It is the attorney's job to understand what is important or necessary to achieve, to recognize what is in the client's best interests, and to explain what is really reasonable to expect and what is achievable at mediation.

The most critical component of preparation for mediation, however, is the one most often overlooked by clients and counsel alike . . . a search for what is motivating the client and the other side. In other words, what interests does he need to have addressed, and what options are there to meet these interests in the context of a negotiated settlement? For example, the plaintiff tells his attorney that he absolutely cannot settle his claim for less than a net of $40,000.00. The defense's position is that it cannot settle the case for more than a gross of $15,000. These are fixed in their minds even before the mediation process is underway. Can this case be settled? Of course it can, but how? Does a good mediator simply pressure each side to give a little? NO! A good mediator will flesh out with each party WHY they have taken those positions. Does the plaintiff have a reason for insisting on a specific amount and no less? Does the defendant have an explanation (other than they think they will win at trial) for offering no more that a max of $15,000? What if the mediator finds out that the reason behind plaintiff's demand is that he needs the money for an investment, to pay for college tuition, to buy a car, or to obtain insurance? Suppose the defendant is basing its willingness to pay a certain amount on budgetary restrictions? Does that change the equation? By determining what the underlying interests of each party are, counsel and the mediator have created the opportunity for creative brainstorming regarding how this claim could be settled with both sides' interests being met.

After you have met with your client and tried to determine what is motivating him, the next step is to prepare with your client—in advance of mediation—a "working list" of acceptable settlement terms, both financial and non-financial, and create a list of acceptable options for meeting your client's underlying needs. You must be certain that your client's expectations are reasonable and fluid, and that your client is prepared to make concessions at mediation. Just as important, while your client may have a fairly good idea of what the "bottom line" or "top dollar" is from his perspective, try to avoid making such inflexible pronouncements. Mediation should be viewed as an opportunity to respond to what you hear from the other side, and from the mediator. A skillful attorney will instill in his client a sense of trust and will encourage the client to be—and remain—as flexible as possible throughout the mediation process.

You must also prepare your client for what he is likely to hear. Surprises in mediation are rarely good ones, and what goes on may not be all pleasant. Be certain the client recognizes not only the strengths of the claims or defenses, but the weaknesses as well. Every case has its warts, and the client needs to know not only what and where they are, but how they could impact the outcome at the summary judgment stage or at trial. Remind him to keep his eye on the ball . . . to remember what his real interests are and to thoroughly consider all alternatives that will put him on the path toward realizing his real underlying goals. Your client, particularly if your client is the plaintiff, should know and understand what type of contractual clauses corporate defendants will likely expect to include in a settlement agreement. These might include non-disparagement language, confidentiality provisions, and agreements to not reapply or accept future employment from the defendant company. It could be an indemnification agreement, or an agreement not to voluntarily assist another individual in bringing a charge against the company. It could relate to the issues surrounding payment options and taxation issues. You know what the possibilities are, and you should go over this list with your client to avoid surprising or upsetting your client during a long and often stressful day of negotiations.

Probably as important as anything else, is the preparation of your client for what could be a marathon day of negotiations. Most significant employment cases take more than 7 or 8 hours to resolve and to draft the final agreement, and persistent mediators will do everything possible to keep you there as long as it takes. Suggest to your client that he bring work or reading material or anything else that will allow for productivity of relaxation.