Preparing For Mediation
It is common knowledge in today’s litigation environment that the vast majority of lawsuits – above 90% by some estimates – are resolved prior to trial; often through alternative dispute resolution processes including mediation. In many litigated cases, a scheduled mediation may become the most important event in the case instead of trial. What does this mean for companies and outside counsel? It means that more than ever before, mediation should be approached with the same care and preparation as one may ordinarily attribute to trials. A blockbuster movie set is an apt analogy – there are a lot of moving parts that need to come together to have everything in place before the director yells, “Action!” There are several ways outside counsel and clients can set up their case for a mediation that is as successful as a summer blockbuster.
Lining Up the Talent
An effective mediation plan starts well before the parties sit down around the (real or virtual) table. Several decisions have to be made well in advance of mediation. Being proactive at this stage is an effective way to take control of the narrative and maximize the client’s outcome.
Choosing a Mediator
Like any big production, getting effective leadership in place early is essential for a timely and effective mediation. In claims that have gone to litigation, a scheduling order may be set that includes some reference, or in some cases deadlines, relating to alternative dispute resolution. These deadlines may come up quickly, so it behooves litigants to be proactive and try to get a mediation scheduled well in advance. And in non-litigated cases, it may make sense to schedule a pre-suit mediation to see if resolution can be had without incurring litigation costs. In recent years, it seems that the best mediators are in high demand and have less availability than ever. Getting on the calendar early prevents having to scramble later on to find a quality mediator.
In order to maximize the chances of success, picking the best mediator for your case is essential. What are the key qualities to look out for? It will likely depend on the case. Is it a low value case where cost savings are paramount? It may make sense to avail yourself of lower-cost mediators where available. If you have a bombastic plaintiff’s attorney or are dealing with unreasonable monetary demands, you will probably want to choose a mediator that will not be cowed by a strong personality and can see through inflated demands. If you have a case with very technical facts, choosing someone with background knowledge in the discipline may be helpful and may cut down on the time necessary to educate them on the issues. Insurance coverage cases, as an example, may deal with nuanced issues of law and fact that may be best tackled by someone with existing knowledge of those issues. In most instances, the parties wish to make the most of the (often expensive) time spent with the mediator. In these instances, choose someone who truly wishes to move the needle in each conversation with the various parties, instead of someone who engages in more of a “shuttle diplomacy” approach.
How to find the best mediator for your case? As future leaders, we may not always have the years of experience that creates the background knowledge necessary for making these decisions – this comes over time. But you can draw on the experience of your colleagues and others in the industry as you grow your own knowledge base. Ask colleagues about their experiences with certain mediators. If you are outside counsel, ask your client about their experiences and if there are mediators that they like or don’t like. Pay attention to conversations relating to other cases or claims and make note of the pros and cons of your colleagues’ experiences. Write down what you liked and didn’t like about mediators that you encounter for future reference. Keep a list with these insights that you can draw on for future cases.
Wrangling The Co-Stars
Of course, a mediation is only effective if the opposing parties show up and are engaged in the process. You will likely get a sense very early on in the case of whether plaintiff’s counsel and any co-defendants are interested in resolving the case or not. This can inform your approach as you decide whether to push for early mediation or not. If the case is already in active litigation, a court’s requirements that the parties set and meet certain deadlines provides an artificial backstop that encourages reluctant parties to begin the ADR process. In some circumstances, it may make sense to engage in mediation even before a suit is filed; and there are indications that plaintiff’s firms are increasingly utilizing pre-suit mediation as a tactic as well.
Who should attend? Again, this may come down to practicalities and cost. Should you insist that the injured party be at the mediation, or could that create too much of an obstacle or even an undue sympathy factor? Who from the client should attend – should it be in-house counsel, an executive, or someone else? If a client representative (other than counsel) does attend, consider what that person’s connection is to the case and whether that person will testify at deposition or trial. Even if the discussions at mediation are protected from discovery and/or admission as evidence at trial, having the other side meet the client representative and form an impression of them before deposition/trial may be a help or a hindrance. If the client has an insurance carrier involved in the defense of the case, determine whether a claims adjuster must or should attend and what that person’s role will be.
Another consideration is deciding how and where the parties should show up for mediation. Undoubtedly, the proliferation of Zoom and other video conferencing software as an effective means to hold mediations has made it much easier and cost effective to engage in this process; and even makes it easier to engage in more informal discussions “off the clock.” However, practitioners also report that in some circumstances, the relative ease of participating in remote mediations has created less incentive for the parties to actually engage in the process and reach a resolution. Also lost in remote mediations are the informal chats in the hallway that may break a logjam; however, some mediators have come up with creative solutions to make the process as close to the “real thing” as possible. Outside counsel and clients should collaborate and discuss whether a remote or in-person mediation is preferred. If a remote mediation is preferred, outside counsel should be prepared to advocate for such a format and to reassure the mediator (if necessary) that the client is no less invested in resolution of the case for requesting a remote session.
Above all, the most important thing to do at this stage is to make sure that all the parties are on the same page and that expectations are set. Will the appropriate players be there (from all sides)? If there is a scheduling conflict, is there an appropriate backup that can attend to allow the session to still go forward? Does everyone have at least some familiarity with the facts and salient issues? Are there other players that need to be accounted for? On this last point, an additional entity whose participation is becoming more prevalent is litigation financing companies. Clients and outside counsel should be asking if these entities are involved and to what extent they have a say in the direction of the litigation.
Before the Mediation
Storyboarding
Hollywood lore has it that veteran director Ridley Scott created detailed storyboards for his movies to capture all of the characters, motifs, conflicts and action before even one camera is powered up. Effective preparation for mediation should be no different. Outside counsel and clients should have a plan for laying out their side of the story through an effective outlining of the facts.
This process can begin as soon as you start working up the case. Identifying what information is needed in order to effectively resolve the matter is essential. This will allow you maximum time to engage in any investigation or discovery to obtain all of the essential facts, and can help you be prepared early on to respond to or engage in pre-suit mediation efforts where applicable. In addition to information on the claimant’s damages, what information do you need – from the claimant and from your stakeholders – to present the strongest case to the mediator? How does that information fit together to create a cohesive story? Early identification of any gaps in the story, or potential hurdles that may make it difficult to present that story, will help focus your efforts in investigation or discovery. And especially where mediation is scheduled early on (including pre-suit), your objective at that session may include or be primarily focused on obtaining additional information from the claimant or other parties. Laying out your storyboard and having an idea of where information gaps exist will allow you to maximize your efforts at obtaining additional information, and if necessary, prioritizing the essential information if the other parties to the mediation are less than forthcoming.
Coming Attractions – Meeting the Mediator and Laying the Groundwork
Once you know the identity of your mediator and have an outline of your position, the work of presenting your case begins. Where possible, reaching out to the mediator ahead of the scheduled session is a good idea: it will allow the mediator to get to know you, if you don’t already have an existing relationship with them; and it will give you an opportunity to identify the players and the issues so that the mediator has the appropriate background to begin working with the parties from minute one of the session. Consider whether to invite participants from the company to these preliminary sessions with the mediator. What additional information can they convey that will ultimately help you present the most effective position?
What information can you and should you present to the mediator at this stage? What information do you need to glean from the mediator?
In many mediations, the mediations are “won” and “lost” on account of whether you can persuade the mediator to accept your position or view of the case. So, how do you accomplish this? Send the mediator the information they need and spend time with your mediator discussing the case. We suggest adopting a persuasive discussion of your case, and be ready to concede points when you should. One of the goals on your persuasive discussion is to have the mediator believing you and your client are the reasonable adults in the room, who have cared to put the time into the mediation, and who undoubtedly evaluated their case fully and reasonably. Secondarily, use your discussion to gather information both about your opposing counsel and with respect to how the mediator appears to view your case.
Set Design – Mediation Statement
Just as a good set can create a scene, your mediation statement is an opportunity to frame the issues for the mediator. In most circumstances, the parties will have an opportunity to submit a mediation statement ahead of the scheduled session. This opportunity should not be taken lightly. Your mediation statement is your clearest opportunity to present the case that you storyboarded to the mediator and will leave a lasting impression as it will always be at their fingertips before and throughout the mediation. In the ideal scenario, because you have already storyboarded the issues and the parties’ respective strengths and weaknesses in their positions, it will be a very straightforward process to distill that information down into a concise statement and present the best persuasive case to the mediator.
There are a few decisions to be made with respect to the mediation statement. First, consider whether you want the statement to be available to the other parties. There are, of course, pros and cons to this approach and the decision may rest on your impressions of the other side. Second, to the extent there are co-defendants in the case, consider whether it makes sense to present a joint statement or a partial joint statement to the extent there are issues shared with those co-defendants. Third, consider to what extent you want to take a hard line vs. conciliatory approach in the mediation statement. Additionally, determine whether your mediator would find a more law-focused or fact-intensive presentation of the company’s case, and draft the statement to match that approach. Finally, determine whether there are any facts that you unearthed in your investigation or discovery that are appropriate to hold back and leave out of the mediation statement in order to present them at the mediation for highest impact.
Lights, Camera, Mediate!
Table Read – Preparing Client Representatives
Before the mediation session, it is a good idea to schedule one or more sessions with outside counsel and client representatives to prepare all participants for what to expect at the mediation session. Of course, some client representatives are seasoned professionals with many dozens of mediations under their belts; others may be newer to the process. These preparation sessions should be tailored to their comfort level and to the shared goal of presenting a knowledgeable and confident face of the company.
What are some questions that should be answered by outside counsel in these sessions? Counsel should be prepared to speak about the following topics, among others: their interactions with plaintiff’s counsel and their impressions of how opposing counsel behaves; whether the injured claimant will be at the mediation and how (and whether) to approach that person; and who they believe the target defendant will be at the mediation session. Above all, the key in these sessions is to empower client representatives to bring the appropriate amount of settlement authority to the mediation session. So perhaps the most important piece of information to convey is an honest evaluation of the case and of the company’s liability.
From a client’s perspective, thought should be given to what the company’s ideal outcome would be. In many cases, resolving the matter for a fair sum is the best outcome. But that isn’t always possible, especially if the parties’ positions are very far apart or there are still many unknowns with respect to the facts. Anecdotal evidence suggests that in recent years, following the COVID-19 pandemic, mediations are being approached as an information-gathering and information-sharing process, especially where they are conducted early on in the life of a claim.
Cameras Rolling – At the Mediation
The day of the mediation arrives. Whether the session is conducted in person or by remote means, your preparation along the way has set the company/client up for success and ready to handle any unpredictability in the schedule or the substance of the session.
Especially early on in the session, information-gathering may be the primary focus. Leverage your mediator and the groundwork you laid in early conversations with them. Learn from the mediator who the decisionmakers are in the other room. If you established during your preparation that you need certain additional facts in order to evaluate the matter and your position, identify these facts and enlist the mediator’s help in obtaining them. To this end, don’t be afraid to tell the mediator that you need their help. By the same token, don’t be afraid to ask the mediator tough questions throughout the session. This person was engaged to help the parties get to an agreeable outcome. Most mediators welcome frank conversations where the parties communicate what they need to get to that agreeable outcome.
A concept that may be unfamiliar to newer practitioners is the concept of brackets. Mediators approach brackets in different ways, but in general, brackets are a tool used by mediators to identify a range of settlement amounts that the various parties are comfortable negotiating within, and/or to break a logjam of small, incremental settlement offers and counteroffers. Consider whether and when the company is willing to engage in a bracketing approach and be prepared to communicate those wishes to the mediator.
That’s a Wrap!
Preparation and flexibility to adapt to changing scenarios are the keys to a successful mediation. When you leverage both of these, no matter what your goals are at the end of the mediation session, you will be well positioned to meet them.