Mediation is all about preparation, yet I find many times where the parties and/or the mediator are not thinking about a lot of the underlying questions about mediation, such as the following.
Generally, everybody agrees that mediation is most effective before both parties have completely prepared for trial and expended all their resources, but in individual cases there may be very good reasons to mediate at different times.
Certain cases lend themselves to pre-suit mediation. If both parties have a pretty good grasp on what the issues are and the parties really don’t need to exchange discovery, the parties should absolutely look at pre-suit mediation. I mediated a case years ago representing one of the parties to a shareholder/noncompetition agreement dispute. Both the parties were business owners who understood the business and the parties had exchanged letters which pretty much outlined the parties’ legal positions. Both parties wanted to move on to separate their business relationship as soon as possible and both parties knew that litigation would simply delay the resolution of that relationship.
In certain cases, the parties don’t want the publicity of a public lawsuit to interfere with their business, for example, if the parties anticipate making negative comments involving their ongoing business which could impact the business itself. In certain cases, the parties will continue to have long standing connections even after the present litigation is resolved and want to avoid the adversarial process of litigation because they will continue to have a relationship.
One potential concern is that a party who wants pre-suit mediation may inadvertently give the impression that they don’t believe their case is particularly strong. It is certainly better if both parties come to the conclusion that pre-suit mediation makes sense.
In some cases, the case needs to be filed, but the parties want to mediate very early in the process. If the amount in controversy is not substantial, early mediation before the parties spend a lot in lawyer fees makes a lot of sense. In some cases, the parties need to figure out issues on a very time sensitive basis. In cases involving noncompetition agreements, for example, the issuance of injunctive relief can effectively resolve the case, but in the absence of such relief, the parties may want to mediate early so that both parties know where they stand about how they deal with customers or other employees.
In civil cases, generally both parties need to do their basic discovery before mediation makes sense, but the parties could defer additional discovery such as depositions and more expensive types of discovery after both parties have a good sense of the basic facts. Early mediation may make sense for cases which do not involve insurance. If both parties are paying their lawyers rather than an insurance company, then both parties may strongly consider the need to resolve the case sooner rather than later. If there is a provision for attorney fees however, such as a case involving a mechanics lien or a contractual attorney fee provision, it may make sense to mediate the case early to at least limit the potential exposure for attorney fees.
In civil cases, the parties may have completed basic discovery and the depositions of the parties but have not completed expert discovery which typically is extremely expensive. In some cases, that is the right time to mediate before the parties have to spend thousands of dollars recruiting and deposing experts. This is a good time to consider mediation in cases that will typically involve a large number of experts which may be spread across the US, for example, medical malpractice cases. In some cases, it may be worthwhile to schedule mediation before a dispositive motion is resolved because both parties recognize they have risk depending on how the court rules on the dispositive motion. Most family law cases mediate around this time because generally we do not do depositions or expert discovery.
Certain cases do not position themselves well for various reasons until right before trial. For example, perhaps there is a complicated issue involving liability or causation which needs to be fully developed before the case is ready for mediation. Perhaps the insurance carrier insists on seeing how strong the opposing experts are. Unfortunately, mediating at this late stage generally means that both parties have to be fully prepared for trial and therefore defense costs or prosecution costs of the case are largely not an issue. There are also times when, at the last minute, the court orders the parties to go to mediation or return to mediation to see if there’s any last-minute chance of resolving the case.
I think it is critical that the parties mediate when they have a comfort level that they know enough about the underlying facts. As a mediator, I find it very difficult to resolve cases when the parties are essentially conducting their discovery during the mediation, particularly when complicated items such as retirement accounts are involved. I’ve had lawyers who insist upon early mediation because they make very strong allegations against my clients, but really are not providing the underlying evidence to support the allegations. Resist the temptation to mediate on an artificial timeframe.
2. When your client is not ready.
In family law cases, I’ve had times that simply my client was not in the right frame of mind for mediation. The client was overwhelmed; the client did not feel that he or she understood the underlying issues; or the client was still in the grieving process. Most of these issues can be dealt with by solid preparation, but sometimes you just need to reset the mediation to a later date.
Not every mediator is right for every case. The mediator does not determine the outcome, but can clearly have a lot of influence on the outcome. You must spend some time learning about potential mediators to mediate your case. I have had lawyers call ahead of time to get some understanding about the type of cases I mediate and my general philosophy on mediation. If you are not familiar with the mediator, I think this is an excellent idea. Here are some things to keep in mind.
In some cases, you want a mediator who has a substantial amount of mediation experience, but who does not need a lot of experience in the substantive area of the law. In other cases, it may be important to have a mediator who knows a lot about the substantive law. In a recent case I had, I was local counsel in a litigation case involving a tax sale. I knew nothing about tax sales other than it involved a very detailed statutory process. The opposing party wanted to use a respected out-of-town mediator who was a retired judge but had no experience in the substantive area. I proposed a local lawyer who had not mediated a lot of cases to my knowledge, but had represented similar parties in tax sale cases locally and also had some sense of the local judge. Ultimately, we went with the local attorney and his knowledge of the underlying cases and statutory process was invaluable in getting the case resolved.
In a few cases I’ve had, one side was insisting upon a mediator that the other side had never used which typically led to a long discussion about other mediators. Both parties should have a comfort level with the mediator selected. That is especially true if the parties see that the mediator has a personal connection with one of the lawyers, but the mediator doesn’t know who the other lawyer is. In one case, plaintiff’s counsel in a medical malpractice case in which I was defense counsel agreed to a defense medical malpractice attorney to serve as the mediator. His thought process was that the mediator would have a lot more credibility with my insurance company and that his client would hear all the potential bad news about their case as well. It was a smart decision in the case settled.
This generally does not come up in civil cases, but I know that I’ve been selected as a mediator in several family law cases because I am one of the few male family law mediators in my area. In family law, at times the husband is more comfortable having a male mediator, especially if everyone else in the case is a woman. I’m not suggesting that gender matters, but sometimes that lets the client feel they have a fair chance certainly cannot hurt.
In certain cases, I may want a mediator who is very good at empathy. In certain cases, I may want to mediator who gets to the bottom line quickly. In a few civil cases, I’ve leaned towards a retired judge who tried a large number of civil cases to bring that perspective to the table. Each case is different. Again, it’s important to know this type of background information, if possible, about your mediator. Talk to other lawyers about their experiences with the mediator.
Although in family law cases the mediation training generally encourages the parties to stay together throughout the mediation, that has not been my experience as a practitioner and mediator in Southern Indiana. In my family law practice, on a few occasions the parties have agreed to four-way settlement meetings involving the parties and attorneys only with some success but you absolutely have to have the right lawyers (who can be civil to each other and keep their clients in check) and the right clients (who sincerely want to resolve the issues and not simply pick on the other party), otherwise these type of sessions can cause the parties to go backwards on their negotiations.
In civil cases, an opening statement involving all the parties was the norm, but the last few civil cases I’ve had both parties have dispensed with this requirement. I have mixed feelings about this. As a mediator, I do think it’s important for both people to gauge the other party face-to-face for at least a short time.
I’ve seen the opposing attorney acknowledge that they caused harm or acknowledged responsibility for certain events which went a long way in helping the parties reach an agreement. I’ve seen the parties hear for the first time of potential problems with their case that they either did not know or did not really comprehend until the opening statement which made them more receptive to a reasonable compromise. In my personal experience, I’ve seen insurance adjusters at least rethink their position based upon how prepared the other party’s counsel was and how the attorneys addressed each other on the issues.
If you’re going to have an opening statement, it is important that each party be civil and respectful to the other. The mediator should reinforce these norms. Good attorneys brief the client ahead of time about this issue, but also realize that a “scorched earth” approach in opening session will probably not be received well.
As a general rule, I always want to allocate a full day for mediation. Most of my practice involves family law issues as a practitioner and a mediator. In cases where the parties are addressing limited issues, a half day may be enough, but I always try to set aside an hour for the parties and the attorneys to draft and review the final mediation agreement. Having a short mediation day may force the parties to move quicker, but when there are multiple issues or emotional issues, I find it very hard to pull that off.
Family law cases can also take a real emotional toll on the parties. In some cases, it may be better for the parties to adjourn the mediation and reset the mediation relatively quickly to give the parties time to do additional discovery. If a party feels rushed to come to a settlement, that party is very likely to blame the lawyer for that outcome. Several years ago, I had a mediation involving a party who had significant ADHD. Out of a mediation lasting over eight hours, the mediator probably spent six hours of that time going through every issue one at a time with that party. There is no way that that mediation would have been successful but for that time commitment.
This is an infrequent issue but does come up from time to time. Generally, the mediator will have the parties at the mediator’s office. In civil cases involving multiple parties and an out-of-town mediator, there are times where the lawyers will agree that the mediator should come to the local area rather than having multiple attorneys and parties drive to where the mediator is located. In a few family law cases I’ve had, if the lawyers are a significant distance away from the courthouse, the parties have agreed to mediate at the courthouse if the court is closer to halfway between the parties or their lawyers.