Friday, April 18, 2014

Lawyers, Get The Most From Your Mediator

By Hilary High

Good mediators should love working hard to help litigants settle cases. Expect no less, and take steps to get the best your mediator has to offer. In other words, “Help me help you.” (Jerry Maguire’s client, Rod Tidwell, burst into laughter upon hearing Maguire’s plea. Nonetheless, if you want your mediator to either save you money or show you the money, help her help you.) Consider these tactics to maximize your mediator’s effectiveness.

1.  Perform Due Diligence. Call potential mediators to discuss their experience, build rapport, and evaluate whether their approach is right for your case and client. Confidential ex parte communications are a benefit of mediation.

2.  Expect the Mediator to Work Ahead. If something must occur before you can meaningfully mediate, let the mediator know in advance. Do you need discovery responses, records, a ruling on a key motion? The mediator may have ideas to get what needs to happen done, or about a workaround.

3. Use the Mediator’s Emotional Intelligence. Talk about party dynamics, your client’s experience with litigation, your relationship with opposing counsel, involvement of adjusters and other decision-makers, or anyone else who may impact the mediation. Share any larger consequences of the negotiations. Discuss why you anticipate taking certain approaches to issues or with attendees. These pieces of information will help the mediator set the right tone for the mediation. 

4.  Give the Mediator Information. Some lawyers provide information via letter, email, or a call before mediation, and others do not. If you do, include the following: 
(a)    Status of past and ongoing settlement discussions; 
(b)    Attendees’ names, titles, and roles;
(c)    Procedural posture; and
(d)    Factual and legal issues of the case.
Expect your mediator to read everything you send. Bullet point timelines are easier to use in caucus than narrative summaries. 

5.  Tell the Mediator Where Things Stand. Memories and notes about past demands and offers may differ. Discrepancies arise when lawyers have informal discussions, cases change hands, or for other reasons. Sort through that history before mediation to save time and avoid losing ground already gained.

6.  Vet Your Demands and Offers with the Mediator. “The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” §44.1011(2), Fla. Stat. Expect your mediator to do these things. Experienced mediators have seen hundreds of people negotiate and may see things that are overlooked. Ask for thoughts and suggestions about issues, positions, and numbers, so you and your client have the benefit of your mediator’s ideas when making decisions.

7.   Have the Mediator Message the Other Side. 
(a)    Numbers are more effective with messages than without. Without a message, a recipient will speculate about the number, your strategies, and your intentions. Telling the recipient this information eliminates time-consuming and distracting speculation. 
(b)    Use your mediator as a sounding board for messages you want to convey and to help you craft effective ones.  
(c)    If a message is crucial, delicate, or expected to evoke a strong reaction, have your mediator say it to you first. Hearing it yourself may make you reconsider the number and/or your message. 

8.  Expect the Mediator to Be the Last One to Quit.