In The Art of War, the legendary Chinese General Sun Tzu wrote that “Every battle is won before it is ever fought."
A mediation is not a war or a battle, but it is a negotiation. Every negotiation, just like a battle or a trial in court, requires thorough preparation.
For attorneys, getting ready for mediation involves preparation of your client, yourself, the mediator, and even the opposition. For clients, preparation means listening carefully to your attorney and keeping in mind that going to mediation is far different from going to court because no one will decide who is the winner or the loser.
Preparing the Client
Before going to mediation you should prepare your client carefully. Rather than just spending a few minutes on the telephone, I suggest that you meet with the client and go over at least the following matters. (If you are the client, be sure to discuss these points with your attorney.)
- How the mediation will be conducted, including the roles of the various participants.
- Confirming that the client, or client representative, will have the necessary authority to settle the case.
- That a mediation is an assisted negotiation. It is not like a trial, and the mediator will not decide who is right or wrong.
- The goal is not to win over the mediator; the goal is to persuade the other side.
- People are more willing to compromise with opponents who are reasonable and courteous. It helps to agree with the opponents when they are right.
- If the client will be speaking during the joint session, the content of his or her remarks. It is important to avoid exaggeration, mistakes, and personal attacks.
- The negotiating strategy, including the need to have an open mind rather than a bottom-line approach.
- Realistic alternatives to a negotiated settlement, including the litigation budget if the fee arrangement is other than contingent, the likelihood of success or failure, and the net financial result to be expected if the case does not settle.
- The need to be patient and to stay until the case is resolved.
It is a good practice to remind yourself of the similarities and the differences between trial advocacy and mediation advocacy. In both forums, you must bring with you all of the ammunition that you can muster. Having a good command of both the facts and the law will help you to demonstrate the strengths of your case and to cope with its weaknesses.
When going to mediation however, the goal is get the other side to understand your positions, respect your point of view, and agree to a solution that your client can accept. You must remember the difference between a conference room and a courtroom.
Analyze your theories of the case and evaluate your strengths and weaknesses. Try to put yourself in the other side’s position and imagine how they will view their case and your case. Make a realistic assessment of the probabilities of success on both sides. Do not focus just on the liability issues; think carefully about the measure, calculation, and amount of damages.
Request, and if necessary seek the mediator’s assistance in obtaining, any information that you or your client may need in order to prepare for the negotiation.
Preparing the Mediator
Although the position paper is the primary vehicle for preparing the mediator, it is not the only tool that is available to you. Mediation is not like arbitration, and you should feel free to write, email or call the mediator at any time. The more that the mediator knows about your case in advance, the better will be your chances for both a good result and a good process. You should also take advantage of the pre-mediation conference to educate the mediator about the issues, the strengths and weaknesses of your case, and how you intend to present it at the mediation.
Preparing the Opposition
If you will be negotiating with an insurance carrier or other institutional party who must complete an internal evaluation in advance of the mediation, be sure to provide them with all of the information that they will need. Some plaintiffs’ counsel believe in sending the insurance carrier as much information as possible in advance, including videos, PowerPoints, and other demonstrative evidence. This strategy of laying all the cards on the table is meant to maximize the settlement authority that will be put on the case. Saving the presentation for the mediation may mean a missed opportunity.
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Additional articles by Michael P. Carbone