To make the most of mediation, one must understand its purpose. Too often, mediation participants treat mediation like a nonbinding substitute hearing on the merits: a trial proxy. It’s not. Mediators have no authority to bind the parties. Mediators cannot discuss the merits of the case once mediation ends. So, if mediators have no authority and no ability to advise outside parties of their views of the merits, what’s the goal? In this article, I hope to clarify mediation’s goal: to uncover any option better than trial. After discussing the goal, we’ll discuss preparation, process, and follow-up.
I explained earlier that mediation is not a trial proxy. Mediation’s goal is to uncover1 any option better than trial. To make an informed decision about settlement, mediation participants must relentlessly uncover all available options short of litigation.
Think of litigation as a fistfight.2 A fistfight is a last resort for rational people because few people leave a fistfight better than they entered. Most people get hurt without any upside. Only top-level prizefighters, who gain large purses for their pain, leave the ring “better” off. And many would say that even prizefighters pay too great a price because they get injured, sometimes profoundly.
So it is with litigation. A few trial litigants convert their pain into enough money to improve their situations, but most don’t. Consequently, like a fistfight, a trial should be a last resort. Keep your eye on the real prize: uncovering better options.
The calculation is simple3: is there any better option for your client than a trial? If so, your client should accept it, no matter how dissatisfying that option might be, because it’s better.
Now that we understand the goal of mediation, let’s examine preparation, process, and follow-up.
Mediation preparation is not the same as trial preparation. Their goals are divergent. Trials are about persuasion, while mediations are about uncovering options. Don’t waste time preparing for a trial proxy. Don’t worry about convincing the mediator how strong your case is. Instead, think about the steps that can help you and your client learn if it’s better to settle or fight.
You have two tools at your disposal: the mediation statement4 and the pre-mediation conference.
The mediation statement
Notice I call it the mediation statement, not the mediation brief. That’s intentional. Too many times, lawyers copy and paste a pleading, a motion, or a trial brief and call it a mediation statement. That’s trial proxy preparation. If mediators cannot make binding decisions on the merits of your cases or convey their assessments to others, how much value does your MSJ brief hold? Let’s refocus on uncovering information.
Unlike pleadings or motions, mediation statements can be ex parte. Consider the value that opportunity brings. Without fear of prejudicing your case, you can highlight your case’s strengths and weaknesses. You can reveal what you need to know to make better decisions about settlement. You can discuss issues you’ve had with the case, opposing counsel, and even your client. Don’t try to make mediators judge and jury proxies. Make them your guides for exploring the settlement landscape.
Explaining the merits of your position can be helpful, but include other information. What has held up settlement? Do you have concerns about your client’s ability to be a persuasive witness? What are the holes in the discovery that have prevented you from settling earlier? What can the mediator do that you have been unable to accomplish so far? How can the mediator help you uncover better options? These questions are not exhaustive. Use your creativity.
If you can, send your mediation statement before your pre-mediation conference. The better you can prepare your mediator, the more efficient the mediation will be.
The pre-mediation conference
Like mediation statements, pre-mediation calls can be ex parte. Many mediators use these calls to get candid assessments from counsel and to learn about case dynamics that no one puts in writing. Do the parties have unrealistic expectations? Why are they unrealistic? Is there an emotional or legal issue the mediator can help clarify? Is there a conflict with opposing counsel that the mediator can help mitigate?
Resist the urge to argue your case during these calls. Instead, arm your mediators with the inside information that can help them uncover options.
The last step of preparation doesn’t involve the mediator. Prepare your clients. Too many litigants believe that mediation is a trial proxy. Explain to them it’s not. Don’t make your clients pay your fees and the mediators’ fees for explanations they can get for half the price. A few minutes of explanation beforehand can mean substantial savings in time and money when mediation day comes.
That brings us to process. The word process implies something that unfolds over time, and that’s true of mediation. Like a three-act play, the mediation process has three phases: exposition, conflict, and resolution. As negotiators and doers, many of us want to skip the first and second acts and jump to the third. That’s not usually possible. And like a three-act play, a mediation frequently requires all three acts for its participants to feel they got their money’s worth.
Act 1: Exposition
During the exposition, the participants tell the mediator about the genesis of the conflict. This background information is essential. For the client, it’s a chance to vent. Although mediation is not a trial on the merits, it is an opportunity to be heard. That feeling is vital for the participants, and many mediators have observed that exposition is necessary to avoid buyer’s remorse after a settlement. This exposition phase is more productive, however, if you have prepared your client as explained earlier.
It’s easy to rush this step but tamp down your impatience. Remember, the goal is to gather information. Even if you think you’ve heard everything, you probably haven’t. During one mediation I handled, the plaintiff drew the layout of the real property in dispute for me. While we discussed the parcels, the plaintiff realized that his plan for the land was no longer commercially viable. Mediation helped him discover that he had to abandon the original remedy he sought, specific performance of the contract. That realization simplified the negotiations.
When impatience washes over you, take a breath. Concentrate on the goal: uncovering options.
Act 2: Negotiation
That brings us to the second act, negotiation. Here conflict runs high. It’s easy during this stage to be unhappy with the other side and lose sight of the purpose (to make an informed decision). Every demand and counteroffer, no matter how unreasonable, carry information. Read the story that the numbers tell. Use your demands and counteroffers to send your own signals. If you can’t decipher the exchange, ask your mediator. Your mediator may have insights as to how the other side has justified its positions. Use that information to evaluate your own.
Although the mediator can’t make binding decisions, you can always ask what the mediator thinks. Some mediators avoid being evaluative, but most will share something. Even if you disagree with your mediator, you’re learning valuable information: after hearing from you, your client, and the opposition, a neutral third party sees things differently than you. Maybe the mediator is missing something. Or maybe you are.
Be creative. Sometimes, negotiations are just about a number. Other times, innovative ideas carry the day. I’m intentionally repetitive here: uncover the options. Turn over every rock you find (or that they throw).
Act 3: Resolution
Like in a drama, the resolution is the shortest act. If you’ve settled your case, it needs little explanation.
If the case hasn’t settled, ask yourself this question: am I convinced that a fistfight is the only choice for my client? Have I uncovered every option? If the answer is no, you haven’t finished mediating because you can’t make an informed decision. Get more information! If you and your client know that trial is the only choice, mediation was successful.
If the case settles, determine what follow-up you need. Many mediators will help with the final steps of exchanging the agreement and reviewing its language to include the material terms. If you can sign the agreement during Act 3, even better.
If the case doesn’t settle, talk to your mediator about follow-up. Many mediators believe that every case should settle, and they’re willing to help long after the session. Subsequent events like adverse rulings, new information, or just time passing can create new opportunities for settlement. Sometimes, a simple follow-up call or email can be the event that breaks the logjam. You have uncovered new options.
Frequently, a mediator can provide cover for the party whose position has weakened over time. If the mediator checks in regularly to ask about new settlement opportunities, taking the mediator’s call is not a sign of weakness. In a case where you want to get back to settlement negotiations, the mediator can be the force that brings the parties back together.
Talk to your mediator about the follow-up plan. Then follow up.
Making the most of a “failed” mediation
Not every mediation ends in settlement. Although that’s unfortunate, it’s not a failure. If you’ve approached your mediation correctly, your case could not settle because you had no choice.
Let’s compare the result of a “failed” mediation under the trial proxy model and compare it with uncovering options model. If mediations are trial proxies, you will learn little from each “failed” mediation. Each failure will teach you the same thing: a neutral without binding authority, who can’t say anything to anyone, agreed or disagreed with you. It’s fair to call that a failure.
If mediations are the relentless pursuit of uncovering options, the experience is different. During that pursuit, you can learn answers to valuable questions. What are your case’s (and your client’s) strengths and weaknesses? What did the opposition argue? What do you need to present a more compelling case? What other facts do you need to know? What discovery are you missing? How did the mediator evaluate the competing case theories? What would have moved the needle for the mediator’s assessment? Was the mediator out to lunch? Were you or your opponent?
Use the mediator’s opinion for what it’s worth: a reality check on your assessment of the case. Now you know two things: (1) trial is the only option, and (2) a neutral’s assessment of the case.
I hope I’ve convinced you that making the most of your mediation means approaching it with the right mindset. Treating mediation as a trial proxy prevents you and your client from getting its full value. Maximize your client’s opportunities by uncovering options and making informed decisions before getting in the ring. You might avoid the bruises and still take the purse.
I use uncover to distinguish this process from discover/discovery. ↩︎