Recently, during the fourth hour of a contentious mediation, a party told me that they did not know that they could settle the entire matter that day. “We were told that today we would find the weaknesses in their case.” I asked, “Do you want to continue the fight for another year?” They looked blankly at each other, then to me. “No. We really want peace. But our lawyer said that they want to fight. We can’t expect them to settle.”
In another mediation, one attorney served lengthy discovery requests at the outset of the hearing. The opportunity to get the drop over their opponent was too important to even try to conclude the matter. Both sets of clients wanted to settle. Their lawyers didn’t. The lawyers had never seriously considered the possibility of being free of the fight. They never prepared to discuss alternatives to litigation. They never prepared to settle.
Such mediations are a waste of time. If we, the lawyers of record, take time with our clients to prepare for the mediation process, in the week prior to the mediation, we can make real progress. Often the parties will reach a satisfactory resolution.
Here some steps that I recommend you take before you ever get to the mediation.
- Discuss the elements of your case with your clients. Give them a straight assessment of the evidentiary strengths and weaknesses, the burdens of proof, the legal elements of their case. Who has the burden of proof? What is your most likely outcome? The likelihood of prevailing, must also address the cost of the remaining litigation and trial. What will be the net result?
- Determine the OPPONENT’s likely settlement range. In more than half of the mediations I have conducted, one party hasn’t been able to identify the opponent’s probable settlement parameters. By the end of your client’s pre-mediation preparation, you should have a good idea of the actual amounts at risk for each party. And their anticipated demands.
- Remove the personal animus your clients may feel for the opponent, or that you may feel for opposing counsel. The primary function of the mediation will be the transfer of consideration. Fomenting antipathy, playing up the fight, getting personal with the other side, may feel good for a time, it will not accomplish the goal of the mediation.
- Talk facts and theories, and you will miss the opportunity to get what your clients want. Facts will be applied to the elements of each cause of action in trial. The same analysis should apply in each mediation. The motivations of each party will alter the weight applied to various facts. Most lay parties begin with the notion of their perceptions of fairness, not the facts.
- Be patient with your clients desire to discuss their view of the equities of the case. This may be your clients’ only chance to tell their story. It can be a substitute for the actual trial. Give your clients the opportunity to understand the entire settlement process, and the possible settlement options. They will accept the outcome if they are prepared for the process.