Tips for Advocates and Attorneys in Mediation

by | Oct 8, 2019 | Mediation, Mediation Articles, Resources | 0 comments

TIPS FOR ADVOCATES AND ATTORNEYS IN MEDIATION

The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential and informal manner with direct involvement of the disputing parties. In representing your client in a mediation, keep these points in mind:

    • Work early with your mediator. Educate your mediator. Arm the mediator with the necessary information that help your mediator be more effective and productive. Discuss whether all potential and necessary parties have been identified and are participating. Assess whether the mediator can assist in accelerating discovery and exchange of critical and pertinent information. Discuss any special concerns, needs and sensitivities that may exist in the case. Enlist the mediator’s help to get needed and helpful information that will allow you and your client to make a good business decision. Discuss any specific problems you may have with opposing parties, your adjuster or client. Determine if identification, review and tenders have been made for all potentially applicable policies of insurance and/or surety bonds. Are the parties ready to settle? Are the insurers adequately informed? Discuss your preferences for a productive mediation process, such as having joint or separate conferences, party opening statements and offering opinions and evaluations. Clarify your expectations and needs for maintaining confidentiality of strategic information.

    • Make sure that the proper decision-makers are actively involved. Party representatives should have realistic, full and fair decision-making authority. Ideally the persons with ultimate decision-making authority should be actively involved in the mediation. When that is not possible, arrangements should be made and confirmed for immediate access to such person(s) with ultimate decision-making authority.

      • Know your client’s goals and needs. In addition to an assessment of your client’s legal claims and rights, identify and be clear of your client’s needs and interests. Mediation presents opportunities to obtain relationship and future business benefits and results that may not be available through legal procedures

      • Know your case. Be prepared to give a brief and succinct statement of the critical facts and claims. A mediation session can be a very valuable opportunity to present a summation of your case to the mediator and the other party. Unless your case is a simple one, prepare a concise and focused pre-mediation submission to the mediator to educate and arm the mediator with the critical facts, document excerpts and issues involved.

      • Prepare your client. Educate your client about what might be expected from the mediation process. Be clear about your client’s real interests and needs and how they relate or differ from their legal positions and potential outcomes in a contested litigation or arbitration. Be personable and professional. Avoid actions, ultimatums, statements or emotionally hurtful words that may jeopardize the trust and good will of the parties and advocates necessary and conducive to productive negotiations.

      • Plan your presentation. Set a firm but positive tone for the negotiations. You can demonstrate the strength of your claims while maintaining commitment to reaching a prompt, practical and productive resolution. Consciously decide whether your client/representative can be an articulate, effective and active participant in the mediation. Consider who will be the most effective representative participating on behalf of your client. Consider whether your client/representative should make a direct presentation of some or all of an opening statement to the other party(ies). Identify whether there are special, real world business or personal relationships, personalities, procedural problems or other considerations that may impact the negotiations. Consider the emotional and relationship aspects of the situation. Would a timely and meaningful apology or a demonstration of sincere empathy be important to defuse anger or hurt felt by another party? Is it important that the other party have an opportunity to vent and express concerns directly to a key party representative?

    • * Be creative and open to possibilities. Mediation allows for “win-win” resolutions. You and your client should be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of your client and those the other party(ies) can help to fashion resolutions tailored to meet yours and their special needs and interests. Many times, solutions are not the ones thought of prior to mediation. Many things are possible in mediation that may not be available in litigation or arbitration,

      • Take advantage of the flexibility of the process. The mediation process can be adapted to suit the needs and circumstances of your case. Determine if review and presentation of key information, testimony, deposition excerpts or even expert opinions will be helpful to develop focus on the critical issues and establish the strength of your case. Parties do not need to agree on the facts to settle. The key is that parties appreciate the risks and benefits of various settlement options and how they meet their particular needs and interests.

      • Think of all possible options. Have a thorough understanding of the needs and interests of your client and of the other parties involved. Look for options that will satisfy the needs and interests of your client and the other parties. Mediations can lead to flexible and creative resolutions. Identify multiple options that might be the basis for a mutually negotiated resolution. The more options and components of options that can be identified, the more likely a resolution will be reached that is acceptable to all parties.

      • Identify and understand the strengths and weaknesses of your case and that of the other party(ies). Understand and determine whether the perceptions and motivations of the other party(ies) is driving, helping or hindering the negotiations. Discuss this fully with your client and the mediator. Identify and understand whether missing information, misperceptions and other barriers to settlement and the factors (factual, legal, economic, psychological, personality, relational, procedural) are driving the controversy or blocking progress in the negotiations. Enlist the assistance of the mediator to obtain or arrange production of critical factual information, correct misperceptions and to help parties recognize and remove such barriers. Mediators can help to provide parties with a meaningful reality check.

      • Mediation is a dynamic process. Negotiate with the right persons. Make sure that all necessary parties are participating meaningfully in the mediation, decision makers should have full authority and flexibility to agree to solutions and packages proposed.
      • Document immediately. When an agreement is reached, document it immediately before leaving the mediation. Be prepared to and insist that an enforceable agreement or memorandum of agreement is prepared and signed. Consider bringing with you a draft or flash drive copy of a proposed settlement agreement. Share a copy with the other party and ask if they have other desired provisions At the minimum, have an enforceable agreement approved and initialed by all parties before concluding the mediation. Include a statement even in an “outline agreement” that the intent and understanding of the parties is that the agreement is enforceable. Consider incorporating a dispute resolution or fast track arbitration mechanism to resolve disagreements over “formal” settlement documents.

      • Keep the mediator’s role and function distinct from that of an adjudicator. Combining mediation and arbitration functions (med-arb) in a single person can be done but is not generally recommended. Parties need to have trust and confidence in the mediator. Mediation works best when no one fears that something said in mediation to a mediator might be prejudicial if the matter later goes before the same neutral then serving as an arbitrator.

    • * Protect confidentiality. Be aware of applicable rules of evidence, statutes and any contractual provisions affecting confidentiality and privileges. Hawaii adopted the Uniform Mediation Act (UMA) which provides a broad mediation privilege. The UMA applies to mediations that are: (1) required by statute, court order, administrative rule; (2) where parties and mediator agree in a record to mediate and expect mediation communications to be privileged; or (3) with an individual who holds him/herself out as a mediator. The mediator, parties and non-party participants such as expert witnesses, insurance adjusters, witnesses have protections under the UMA. Thus the statements and reports of expert witnesses made and prepared for mediation may be privileged. Parties and their attorneys should specifically address whether expert reports are to be covered by the mediation privilege by specific agreement. Having a written agreement to mediate where the degree of confidentiality is spelled out is advisable.

In mediation, parties maintain a greater degree of control over the outcome and resolution of their conflict and usually with substantial savings of cost, time, opportunity costs and aggravation. When parties are willing to mediate in a good faith attempt to search for resolutions to mutual problems, they nearly always succeed.