JAMS ADR Blog by Chris Poole
Carefully vet mediator candidates and, if in doubt, conduct interviews—separately by each party’s counsel or together. (Ex parte communications with a mediator before hiring and during a mediation are, of course, not only entirely permissible, but a huge advantage. No one can ever talk with a judge, jury or arbitrator ex parte.) Determine if the mediator has the right style, temperament, availability and dedication. Will he/she dive into the details, express his/her point of view at the right time and in the right manner, and push the parties toward settlement? While a qualified mediator who is also a subject matter expert is the ideal candidate, it is usually far more beneficial to hire a mediator with lots of experience than it is to hire an expert in the field of law. The mediator can always be educated on the subject. After all, excellent judges try many cases in which they have no experience in the specific legal issue before them.
Evaluate the merits issues throughout the mediation process. It is essential that when the real settlement negotiations begin, the mediator and the lawyers and their clients fully understand all the key issues in the case and the potential outcomes so that discussions and bargaining can be conducted on a principled basis.
Especially if the case is mediated prior to the filing of a complaint or early in discovery, build a mediation process that allows parties to exchange and discuss key information both informally together and privately with the mediator as appropriate.
The parties should prepare a joint appendix of key documents in the case and provide it to the mediator. They should exchange succinct written positions on the key issues to try to understand what will drive litigation outcomes in the event settlement is not achieved. While the parties will rarely agree on the merits, it is essential that they understand what the critical issues are.
After exchanging submissions, counsel should agree to have separate private, confidential conferences with the mediator. These sessions afford counsel the opportunity to share their clients’ deepest concerns and true business goals in resolving the dispute. Private sessions also allow the mediator to discuss his/her thoughts candidly with counsel and to weigh potential settlement options without a party having to make any specific offers.
Each party should work with the mediator and ultimately the opposing party to devise creative solutions that may allow for resolution on terms that no court or jury could ever consider. Even high-stakes government disputes in which money is the focus of negotiations offer opportunities to develop solutions that go beyond just monetary considerations.
The parties should not attempt face-to-face mediation sessions until they have adequately considered all relevant issues. These sessions should involve good faith, serious and, as appropriate, creative bargaining without rehashing or bringing up new legal or factual issues. It is often helpful for the mediator to reserve an hour or two for a final, lawyers-only meeting or conference call a few days prior to iron out any remaining issues and discuss how the mediation will be conducted.
It is vital that the parties bring people to the table who have full authority to settle the case. It’s important that these individuals have the flexibility to adjust their company’s settlement goals as the discussions proceed. You don’t want client representatives to pass on the mediator’s messages; you want the key decision-makers to hear directly from the mediator. With government cases, it is often possible for the mediator, working closely with the line attorneys, to arrange for Justice Department supervisors or key officials in the agency the DOJ is representing to be briefed on the mediation and even attend a mediation session.
It is perfectly acceptable and often necessary for some venting to occur during any mediation, and there is a time and place for this. At the end of the day, participants in a mediation must put emotion aside and remember that they are playing a different role than when they are litigating. “Winning” in mediation is best accomplished by facing up to the realities of what litigation would look like and working faithfully with the neutral to get the other side to agree to a solution. Starting negotiations with a reasonable, meaningful proposal incentivizes the other side to do the same and sends a strong signal that a settlement can be achieved. Remember that a party never has to make its next move until it sees what the other side’s position is.
As long as progress is being made in the negotiations, the mediator should be allowed to continue working on the case even if no final resolution is reached during a day or two of mediation. Many complex cases are effectively resolved in the days or weeks after the scheduled mediation by the mediator working the phones, convening an occasional meeting and simply following up with the parties’ counsel.
Issues can arise unexpectedly during the preparation of final agreements, and the mediator can be helpful in resolving them, including bringing the lawyers together for drafting sessions. For example, in False Claims Act cases, there are often issues concerning the scope of releases and covered conduct that surface anew when preparing a settlement agreement.
All of these tips are highly successful in resolving most complex, high-stakes business-to-business and government disputes. But the essence of mediation is that it can always be tailored to meet the needs of the parties because every case is different. Mediation, unlike judicial proceedings, can be tweaked throughout the process to meet the parties’ objectives. Parties that work with the mediator at all times to ensure the process is serving them have a very good chance of obtaining a successful resolution.
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