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<xTITLE>Preparing for Court Ordered Mediation</xTITLE>

Preparing for Court Ordered Mediation

by John H Hachmeister
September 2000
You've just left the status conference and are headed toward the "arb" window in the clerk's office. You're thinking, "one more costly impediment to bringing this case to trial." Your client is beginning to moan about the costs, or even worse, it's beginning to look like you won't make nearly the amount of money from a contingency agreement. You pine for the good old days when there were only two stages of trial, the chest beating stage and the gulp stage.

However, you've now reached the "arb" window and the opposition counsel asks you if you prefer arbitration or mediation. She says she has had good results from mediation. You think, "what the heck" (or something along those lines) and go along with mediation. At least you get a free bite at the apple, since neither you nor the county pays for this session. You still view this as a drudgery instead of the tool the legislature and court system envisions.

As a litigator, you are familiar with most tools of litigation. There is the complaint. There is oral, written and expert discovery. There are dispositive motions. And there is trial itself. There is also an appeal. Mediation or arbitration should also be viewed as a tool.

Briefly stated, arbitration is a litigation tool wherein the dispute is presented before a person who is to possess enough experience in the field to set a value of the case. The legislature has required rules to be followed (that's another story) and a just case value is expected. If your intent is to simply find a value for the case, arbitration may be a tool to use.

Mediation, on the other hand, is a litigation tool where the parties directly and openly discuss the merits of the dispute (lawsuit) in an effort to resolve the dispute. There are no formal rules. However, it is expected that the mediator creates pre-mediation rules and the parties agree on procedural rules for the mediation. A decision as to case value is not made by the mediator except in the context of evaluation to each side. It is the parties, not the mediator who decides the resolution.

Thus, based on frank, open discussion of your side of the dispute, mediation is a good tool at least to determine where you are vis a vis the opposition at this point in the litigation. You are able to show the strengths of your case and, based upon those strengths and the strengths of the other party's case, accurately assess the case with your client. You or your client may well re-assess the value of the case based upon now hearing the case of the other party.

Therefore, you may be in a position to settle the dispute. At this stage in the litigation, as a plaintiff, you are saving real dollars in costs and fees and are saving the psychological dollar value of the arduous, costly trial procedure. As a defense counsel, you become a hero to either your client or the insurance company, with the attendant good will (read, further business).

However, proper use of the tool of mediation requires proper preparation. You may not have been able to perform all pre-trial tasks, but you should have a good read on what is left of your discovery plan. (You do have one, don't you?) Prior to mediation, you should have at least completed paper discovery and attendant motions for further responses, if necessary. Non- expert depositions should have been completed. Any dispositive motions should have either been accomplished or intended. Consultants, in the proper case, should have been chosen and consulted. All medical records should have been obtained.

If you intend to use the tool of mediation, all the above should have been accomplished. If all the above is accomplished, you should be able to sit with your client and frankly assess the other party's chances. And, you can express them to the other party at mediation. Instead, if you intend to solely posture and not use the mediation tool, don't do the preparation. But also, don't waste the mediator's time and effort. And don't tell the court you tried mediation, because you haven't.

But, even if you haven't completed all the preparation, you at least ought to know 1) what legally and factually is not prepared and 2) what what is left will tell you. Thus, you can use the mediation tool by venturing what the balance of the preparation will tell you and the other party. At least it will be a good starting point. Often, when I encounter needed preparation and argument over what further discovery will say, we have halted the process and the parties agreed on a future session once the preparation process is completed. Every time I have done that, the mediation ended in complete agreement, and several times another session was not needed.

Because, all pre-trial steps are designed to restrict the issues of the dispute. By the time of trial, many of the issues can be stipulated to. Trial should only be on the remaining issues. This saves the court system time and money while allowing it to continue smacking three strikes persons. The court system depends on attorney preparation as much as it depends on astute judges.

If you've prepared enough to restrict the issues, at least for mediation purposes, you've got a good handle on what what is left will tell you. Now, you can decide how best to use the tool of mediation. If you've got a dead bang winner ( yeah, right), or if it's clear the other party has not prepared, your case can be used as a club. However, the most likely scenario is that you've exposed some holes in your case. What strengths your case has can be used like a knife. If your case is a knife, use it as a knife. A knife is a lever. It provides leverage (how clever, these British linguisticators). You can use the leverage to your client's advantage.

A knife is a knife. Don't try to use your knife as a club. A good, experienced legally trained mediator will expose this tactic. Your client, hearing this, will wonder what all is going on. The mediation has little to no chance of resolution.

A final word about preparation and specifically your frank, open discussion with the client. Particularly for plaintiff counsel, find out why your client is suing. Skilled mediators look to interests of the parties, not positions. Your client may have interests other than monetary receipt or payment. In the book "The Crock of Gold" by James Stephens, the wise old philosopher stated, "(r)evenge is the vilest of all human passions. It is the reason the law was created." Your client generally is seeking revenge, whether it is for being hurt, or being dragged into a lawsuit because the dispute couldn't be resolved beforehand.

Even if you must do so in private session, let the mediator know what your client's interests are. As I said before, there are no formal rules for mediation. This goes to the sessions and to the resolution. My mediation sessions have used creative resolutions to satisfy interests of litigants. They have ranged from brokering a roll of carpet to a letter of apology. If the resolution satisfies the interests of the parties, the resolution is a good one.

Maybe there is another stage of litigation. Maybe litigation has evolved while you were entrenched. Maybe you can use another litigation tool. Maybe you should cooperate with the mediator, particularly with the mediator's requests for prior information. You might be a better litigator for it.

John H Hachmeister is an attorney and mediator with Beach Cities Center for Appropriate Dispute Resolution