What makes a mediation successful? To answer this, it is important to consider the roles and relationships between a lawyer, his or her client, and the mediator throughout the mediation process.
Many of us who are attorneys, particularly those of us with more “senior” or “grey haired” status, can recall our law school years being focused primarily on developing strong advocacy and trial skills, but with little to no emphasis then placed on developing negotiation skills to reach settlement. Litigators still rightly pride themselves on their trial and advocacy skills, and it is this ability and willingness of an attorney to effectively try their case that creates the opportunity to reach more favorable pre-trial settlements for their clients. However, the primary focus of law practice is not trial but rather the preparation, negotiation, and settlement of cases, as less than 3% of cases actually go to trial. Recognizing this, law schools have significantly increased course offerings focusing on negotiation, mediation, and other dispute resolution skills.
A mediator is an expert in the complex process of negotiation and settlement of disputes. An effective mediator is a skilled facilitator who orchestrates a mediation like an efficient business meeting, creates a dynamic, structured, and respectful climate, and sees that all parties - as well as their counsel and/or their insurers - have the opportunity to express themselves as needed to generate a full understanding of all aspects of the conflict, both material and human. S/he helps the parties focus on their fundamental needs and priorities and seeks out and encourages common ground in order to arrive at a satisfactory settlement.
An effective mediator will also go beyond simple facilitation of the process, to explore the parties’ positions, raise questions regarding these positions, conduct reality testing, and focus the participants on the potential strengths and weaknesses of their case, preferably in a non-threatening and confidential manner. A valued mediator gives honest feedback, and has the ability to cut through posturing and argumentativeness to help parties get down to the business of resolution. The mediator helps the parties develop an agenda, identify key interests, and create a realistic action plan which can be committed to and implemented.
An attorney’s role in the mediation process is both as advocate and advisor to their client. It is the attorney who has prepared, investigated, discovered, and presented the case for the client. S/he advises the client when and if, during the life of the case, mediation is appropriate…whether at the beginning, before suit is filed - or during (or after) the discovery process is completed. In most, but not all cases, the attorney has engaged in a negotiation process to attempt settlement before formal mediation is agreed to. It is also the lawyer’s role to explain to their client the nature of the mediation process and what to expect during mediation. Further, the lawyer assists the client in making an informed choice of the mediator based upon the nature of the case, and the background and experience of the mediator.
Attorneys convey the benefits of mediation to their clients and prepare and coach them to take full advantage of what mediation offers. In that regard, attorneys should determine directly from the mediator the process of mediation s/he employs, and should describe this process to the client. For example, counsel should describe the expected initial joint session and the likely private caucuses thereafter with the mediator. It is also important to discuss with the client who will talk and when, and who will take the lead role, if at all, and how that may change as the mediation progresses.
The attorney advises the client on the substantive law relevant to the case and to the greatest extent possible, should anticipate the arguments that the other side is likely to make at the mediation session. A client’s level of trust in his or her lawyer can be badly damaged if the client learns of potential risks for the first time at a mediation, for example, that there is substantial risk of summary judgment before trial or that the forecasted legal fees will be more than previously anticipated. The mediator will likely be discussing these issues and relevant risks in private caucuses, and the client is likely to hear many similar points from the opponent during the course of the mediation. An attorney and well prepared client that can convince the mediator that they have considered all important facets of the case, are more likely to be convincing that their position is serious and reasoned, as opposed to mere posturing. These perceptions are often translated back to the opposing party through the mediator.
The client may ask for, and should also have the benefit of, their lawyer’s opinion of likely outcomes at trial and/or valuation of the case before the mediation. This enables the client the ability to begin considering a range of acceptable outcomes as part of the process. For example, in a personal injury case the lawyer may advise the party of the range of possible outcomes regarding the issue of liability and reasonable and realistic ranges of a monetary judgment. The client should be strongly encouraged however to come to the mediation session with an open mind and to avoid having bottom line positions.
It is also important that clients understand the confidentiality of the mediation process, both under the terms of the written mediation agreement in effect, and by applicable statutes or laws, such as in Massachusetts, MGL c. 233, s.23c. The client should be informed how this confidentiality applies to both the initial joint session and, importantly, how the private discussions or caucuses with the mediator are themselves confidential. This confidentiality is at the heart of the mediation process and allows parties and their counsel to speak more openly at the session, both in joint sessions and private caucuses, about their case and their true needs and interests. Confidentiality allows the parties to make reasonable demands and offers without such communications being subject to disclosure at trial should the matter not resolve through mediation. The more that a mediator can learn - in confidence - about the fundamental needs of the parties, the better s/he is able to foster a resolution that meets the primary needs of all involved.
Principally, a mediation is for and about the parties. It is the client’s case and they ultimately decide whether to accept settlement or not at the mediation, after hearing the advice of their counsel. In general, parties who proceed to mediation almost invariably seek to resolve their case at that session so as to avoid the continued anxiety, time, and expense of further litigation and the uncertainty involved in going to trial. To many parties, the mediation is equivalent to their day in court, an opportunity at long last to express their arguments, perspectives and feelings to both the opponent and an expert, impartial mediator, who is there to listen and help promote resolution.
Parties come to mediation with differing levels of experience, however, both as to litigation in general and the mediation process specifically. Some clients may have never been to a mediation. Others, such as when the client is an insurer, may have significant experience in both litigation and the process of mediation. A mediator will assess these varying levels of experience and see that all parties equally understand the neutral’s role and the mediation procedures to be employed. At the opening session the mediator will clearly set forth the procedures and background rules, explain the role and impartiality of the mediator, and review the confidentiality of the mediation process.
Some parties come to mediation with intense emotions, perhaps even with anger dating back to the underlying event giving rise to the claim, or with frustration emerging from the claims and litigation process. These emotions often need to be vented and heard at a mediation before an aggrieved party can consider resolution.
Some attorneys tend, for perceived tactical reasons, to limit their client’s active engagement and participation during the course of the mediation session. While in some cases limiting a client’s participation, perhaps at least in the joint session, may be advisable (i.e. where the client has a tendency to speak about their case in a manner damaging to them, has excessive anger, and/or otherwise would disrupt the mediation process), counsel should nevertheless expect that a mediator will seek to engage the clients in discussion, at least in private confidential caucuses, to assess their views, emotions, needs, and priorities. It is important to afford a mediator this opportunity to establish a relationship of trust, openness and impartiality with the parties directly. A lawyer should consider advising the mediator in advance of the session of any client issues, such as intense emotions or unrealistic expectations, so that they can tailor their approach appropriately. Most mediators are happy to speak with counsel prior to the mediation session in this regard. Attorneys should therefore closely consider the advantages involved in direct client participation, as they fulfill their role as both advocate and advisor to the client at the mediation session.
There is an understandable tendency by an attorney to make a strong opening statement at a mediation. A strong opening statement has the advantage of impressing on the opposing side, his attorney or his insurer, the strength of his arguments, belief in his case, and preparedness to proceed to trial if mediation is not successful. Many clients expect strong advocacy from their attorney at mediation, however they should be made to understand that reaching a resolution at the session may be better served adopting a less strident tone and approach. Mediation is not a trial, and remarks made in a joint session should not be inflammatory, belligerent, nor personally offensive to the opponents or their representatives. Such statements often have the result of widening the rifts that exist between disputants. In such instances, a conciliator finds himself expending precious time at the session in effect rehabilitating the offended party to a point where compromise and collaboration on their part is possible. At the very least, counsel should consider expressing during the joint session, that they and their client are willing to listen and proceed in good faith in efforts to resolve the case and that it is their desire to avoid, if possible, further litigation and trial. Such a representation often provides a jumpstart to a more fruitful negotiation process.
One of the challenges attorneys can face is a client with unrealistic expectations about their likelihood of success at trial and/or expected verdict ranges, even when duly counseled by their attorney. In such cases, the mediation process allows clients a first-hand glimpse into the strengths of the opponent’s case and gives a preview of how the evidence will play out at trial. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis which could make settlement seem far more attractive than the alternatives away from the table. Mediators ask hard questions to all sides in the dispute. A practiced mediator, after having established a rapport with the party, and having demonstrated themselves as being both impartial and equitable, can speak in private caucuses to the party, whether a plaintiff, defendant or an insurer, in a reasoned manner about the strengths and potential weaknesses of their case. Mediators must understand the thoughts and expectations of all parties, and rationally discuss with them the risks involved in proceeding to trial, existing judge or jury trends in the type of case involved, the time and expense ordinarily involved in reaching trial, as well as the anxiety and frustration too often accompanying that path.
In that regard, some attorneys become uncomfortable continuing to stress weaknesses in their case to the client or insurer, anticipating a response of: “Whose side are you on?” or, “I’ll get a lawyer who believes in my case”. In such cases, experience suggests that it can be very powerful for such parties or insurers to hear directly from their unbiased mediator, who points out the shortcomings so they can consider a more realistic evaluation of their case.
This is one reason why it is so important that not only all parties, but all insurers with needed settlement authority attend the mediation so the mediator can work directly with them. Even participation by an insurer by telephone during the mediation is a poor second to actual attendance. In such circumstances, the mediator’s ability to speak to the insurer is limited and, too often, entirely restricted; it is then left to the attorney present to communicate the many subtle ebbs and flows of an ongoing mediation process to his/her client, which can be difficult at best for many reasons. To take full advantage of mediator input during the process, the attorney should have his insurance client attend the session and work with the mediator directly.
At times, it is the attorney who may have unrealistic expectations for their client’s case. Being sure to respect and foster the important attorney/client relationship, a skilled mediator may need to engage counsel similarly about their thoughts and expectations, and provide them with a different perspective on the potential risks and nuances of a given case.
After a particularly arduous but successful mediation session, participants may be anxious to depart and, at times, do not heed advice to remain for the processing of a signed settlement agreement, choosing to prepare and sign such an agreement in the following days. However, most mediators know of those cases where, for various reasons, the agreed upon settlement falls though, whether because a party changed their mind, misunderstandings arise as to the specific terms agreed upon, or that the devil lurked in details, perhaps unforeseen. For this reason, most mediators will stress the need for at least a minimal, written, signed, and legally binding settlement document at the end of a successful mediation. The attorney, the client, and the mediator have all worked too hard to have the settlement that was reached potentially be deemed unenforceable due to the lack of a binding settlement agreement. The attorney plays a critical role in sculpting the terms of this mediation settlement agreement and/or further releases and explaining the terms clearly to the client.
We hope this article was helpful to parties, clients, insurers, and attorneys to better understand the roles and relationships that come into play during a mediation process.