05.03.17 by Mel Simburg
2017 Northwest Dispute Resolution Conference
Checklist for Effective Advocacy in Mediation
I. PLANNING FOR A POSSIBLE MEDIATION
1. Timing. Good times to successfully mediate an existing dispute, in descending order:
a. Early, when the issues and interests are known, but substantial expense can be saved.
b. Late, when discovery and motions are complete and it is the last chance to avoid a trial/hearing on the merits.
c. Near motions, either just before or after one or more key motions are presented.
2. Selecting a Mediator.
a. Are any particular skills, knowledge or experience important to understanding the issues and interests in the dispute or with respect to the parties?
b. Do you prefer as the primary qualification a mediator who (i) can assess and share the mediator’s opinion regarding the legal strength of the parties’ positions and what would happen in court (like a former judge) or (ii) a mediator whose approach is to facilitate the parties’ negotiating imaginative solutions to the issues facing them?
c. What are the mediator’s fees and policies? Consider the effect of possible cancellation or rescheduling.
3. Information Gathering.
a. Assemble the important facts and documents in your case.
b. Obtain necessary information from other parties.
c. Who are the necessary participants?
4. Evaluate Client’s Position on Key Issues.
a. Must haves.
b. Can let go.
c. Trading chips.
d. Determine the goals for mediation.
5. Key decision-makers must participate.
a. Determine who is key besides the named party (spouse, relative, expert, corporate officer, financial person). A key person might not be key to the issues, but might be a key adviser to the apparent decision-maker. This applies to your client and the other parties.
b. Make sure key decision-makers are available when setting the session date(s).
II. PREPLANNING FOR THE MEDIATION SESSION
6. Concerns Other Than Facts of The Dispute; Interests to Satisfy or Protect.
a. Critical time periods for upcoming events, decisions, necessary actions, health of participants.
b. Emotional Concerns.
i. Animosity, hurt feelings, jealousy, pride, fear, anger.
ii. Economic concerns: losses (existing, fear of, future, importance of avoiding loss).
iii. Key needs: emotional and metrics (“must have at least ___ or it will be embarrassing”).
c. Other interests that are the real reason behind a party’s desired outcome. The goal is to determine and satisfy the “real reason” rather than the stated outcome or stated issue.
d. Cultural factors that should be taken into consideration.
e. Balance of Power issues that affect personal, emotional or economic concerns.
7. Obstacles. Make a list: economic concerns, personal concerns, interpersonal dynamics.
8. Special Needs: Does the client have a disability, medical condition, need a translator or other special circumstance that should be addressed with the client and the mediator informed so that accommodations can be made?
9. Client briefing. Explain the mediation process and the probability of significant down time. Have the client bring a book or other material to occupy down time. Bring any necessary food or snacks, particularly for individuals who must eat frequently to control blood sugar levels. Ask about any other client needs or concerns.
10. Confirm that you have the information you want to have for the mediation.
11. Review with the client all concerns, interests, goals. Discuss alternative acceptable resolutions.
12. Plan Submissions. Determine whether you will submit a confidential memorandum, a memorandum shared with other parties, or both.
III. PRE-SESSION COMMUNICATIONS
13. Shared Written Submission. Unless the mediator has specific requests, these are the salient items to include.
a. Factual history: parties, events, obvious issues and problems.
b. Procedural history:
i. What has happened so far?
ii. If in litigation, what are important future deadlines and dates?
iii. Discovery, motion and trial preparation status.
c. Each party’s position on claims, defenses, factual issues.
d. Each party’s positions on legal issues and requested relief.
e. Settlement efforts to date and each party’s last position.
f. Any other useful information, such as technical matters or impediments.
g. Send key documents for the mediator to have.
14. Confidential Submission.
a. A clear statement of your client’s interests, objectives and goals.
b. Factors that may be helpful to a negotiated resolution.
i. Continuing relationship.
ii. Common interests or experiences of key individuals.
iii. Common or overlapping goals and interests in a solution.
iv. Other facts that could help reach a compromise.
c. Factors that could interfere with a negotiation.
i. Bad experiences.
ii. Bad feelings: hostility, mistrust, bitterness.
iii. Cultural, personal or business-related bias, imbalance, differing interests.
iv. Particular history, experience or known intransigence.
d. Particular concerns about upcoming costs, risks, disruption to business related to or affecting the dispute.
e. Concerns about publicity, reputation, goodwill, or other sensitivity.
f. Personalities of key players.
g. Information supplemental to the shared memorandum, such as potential settlement range or solutions that your client could accept, but does not want to disclose to the other side.
h. Any matters of special confidentiality that might require special handling.
i. Other cultural factors that should be taken into account.
j. Any other information that could be helpful to the mediator for any reason. For example, can the parties be in the same room at the same time? Is an opening joint session likely to be helpful or harmful?
15. Communications with the Mediator. Unlike court or an arbitration, communications with the Mediator are expected. Many mediators will want to talk with you in advance of the session. Be prepared to go over the key factors for a successful mediation. Be prepared to go beyond the comments in your Confidential Submission (which your client will see) to let the mediator know more about all the personalities, all the impediments and your ideas for approaches that might lead to a successful resolution. Educate the mediator.
IV. PARTICIPATION IN THE MEDIATION SESSION
16. Mediation Settlement Agreement. Prepare a draft. Bring it on a laptop or thumb drive. Be sure to include time periods, enforcement and any necessary confidentiality or nondisparagement provisions. Determine whether you also need a summary settlement stipulation that does not include the terms.
17. Visual Aids. Should you create and bring charts, videos, demonstrations? Determine what points you will be trying to get across and to whom. Will visual aids be helpful? Sometimes a simple time line of events will help with establishing contexts and perspectives.
18. The Advocate’s Goal: Problem-Solving, Not a Hired Gun. You are there to help the client determine whether there can be an acceptable solution. You must shift from a “protective” perspective to an “assistive” perspective. You must separate the people from the problems and focus on problem solutions. You must shift from focus on rights, positions and even “what is right.” Instead you must focus on the interests involved, how to protect the other side from its fears, how to find options that will be attractive because they meet some objective or benefit of more than one party. For example, time and money can be tradeoffs.
19. Know the Alternatives: BATNA & WATNA. Be able to advise your client not only on the Best Alternative to a Negotiated Settlement, but also the Worst Alternative to a Negotiated Settlement.
20. Know the Strengths and Weaknesses of Each Party’s Position. Be prepared to discuss with the mediator both the weaknesses and risks of your client’s position and the strengths of the other party’s position. Before the session, you should have analyzed the litigation risks of each important procedural step. Be prepared to discuss them. Be sure you have looked at the dispute from the other party’s point of view. What is important to other parties.
21. Identify the Barriers to Settlement. Discuss with your client the perceived obstacles and brainstorm together ways of removing or getting around/past those impediments.
22. Restructure Communications. If in joint session, would a separate caucus with the mediator be helpful or vice versa? Might it be helpful for all counsel to meet with the mediator (without the parties) or just the parties meet with the mediator (without counsel)?
23. Additional Information. If you find that you wish you had a certain document or information or could talk with a certain person, go ahead and make that arrangement. You are not limited to what you have already provided or brought with you. If you should bring in another person to the mediation, go ahead and bring that person in (unless there is an expectation of first clearing with the other side your adding any additional participants).
24. Focus and Reassess. Revisit your client’s goals and objectives for the mediation. Where do things stand? What progress has been made? What can be taken off the table so it is no longer a concern (either through agreement or concession by one side or the other)? Discuss whether any goals or objectives should now be altered in light of developments or new ideas.
25. Values. Be sure you will know how to value various alternatives that are likely to come up during the session. If you are surprised with a proposal that you do not know how to value, discuss with your client how to quickly obtain an informed opinion on value or how to address it. Sometimes a proposal is so surprising that it makes sense to suspend the session so that one side has an opportunity to review and evaluate the proposal.
26. Learn. Appreciate that each mediation is a learning experience. If you reflect on something that happened earlier in the session and want to change or modify or state something differently, doing so is usually a positive development.
27. Don’t Worry About What You Don’t Know. Mediation is both a science and an art. With experience and more education, you will become a better advocate in mediation just as you will in other areas of law. For this session, rely on what you do know. Trust your impressions and your intuition. Dialogue with your client on strategy and next steps. Keep in mind that this is not a battle to win, but a problem to solve. If your client is satisfied with the outcome, then you must be satisfied too, regardless of your personal feelings or your belief in what you could accomplish in court.
28. Do Understand the Difference Between Positioning and Misleading. You may use puffery and positioning, but you may not misrepresent material facts. That is your ethical obligation. Your client must not misrepresent or conceal material facts. Doing so can be a fraud that invalidates any mediation settlement agreement. You must not be complicit in any concealment of assets, liabilities or other facts that are material to the final agreement. If you learn your client is attempting to do so, your job is to convince your client to disclose and correct any previously communicated misleading information. Failing to do so, you must consider your ethical obligation to terminate your role as counsel to that client to avoid being complicit in a fraud.
V. CONCLUSION
29. Never Walk Out. There might come a time when you or your client feel you should walk out, either from frustration and disappointment or as a strategy. Instead let the mediator know what your client is feeling and thinking and why. Ask the mediator to make a determination as to whether the negotiation is at impasse. Make a commitment to the mediator that you and your client will let the mediator make that determination.
30. Continue the Process. Sometimes a mediation does not conclude when the session time has expired. That does not mean that the mediation has failed or that negotiations should cease. Determine what has been resolved, if anything. Enter a written agreement acknowledging by both sides the issues that have been resolved. Discuss with the mediator a plan for follow-up. Usually it also makes sense for the attorneys to communicate after a day or two and discuss whether specific remaining issues are potentially resolvable.
31. Complete the Objectives. Mediation is a process and success can be achieved even if it only narrows the issues remaining in the dispute. As you approach the end of the session, whether it seems all or none of the issues have been resolved, review your checklist and address each item with the mediator to see whether resolution or progress might be achievable on each.
32. Confirm Your Client is Satisfied. Check to be sure that your client has no questions or concerns before agreeing to the settlement. Address all questions and concerns. Remember that if your client is satisfied, you are satisfied. It does not matter if you think you could get a better result by rejecting the proposal or if you want more time to get a better result. It does not matter if you are disappointed in the final resolution. If your client is satisfied, you have done your job and you should be satisfied.
33. Sign an Agreement. Do not allow euphoria at reaching a resolution dissuade you from the grunt work of putting it down in writing and getting everyone to sign before leaving the venue. That is why you brought a draft in the first place. The more you can get into a Mediation Settlement Agreement at that time, the fewer loose ends will be left to unravel. The next day, people will have second thoughts about settling and concessions made, they will also think of ways to undue or modify your client’s expectations if a more thorough writing is needed later. Remember an assumption or understanding is not an agreement until it is written down and signed.