Why do mediators request briefs from the parties? No- it is not just to learn about the case. Their more important function is to force the parties to think and analyze their case; to give some thought about the strengths and weaknesses of their respective cases and consequently, their position on settlement.
Recently, I had a mediation in which only one of four parties (one plaintiff and three defendants) provided a brief. And that one brief was from a peripheral defendant. Although I was a little concerned about the lack of briefs, my experience taught me that cases could still settle without briefs being submitted. And, unfortunately, I did not follow up with an inquiry of counsel about the missing briefs. (In hindsight which is always 20/20- I should have inquired!)
This lack of briefing was a harbinger of what was to come. At the start of the mediation, the plaintiff’s attorney advised that her client was called out of town on an emergency. When I asked if the client would be available by telephone, counsel responded affirmatively. Because of the nature of the emergency, I inquired if we should postpone the mediation because the plaintiff’s mind would NOT be on the mediation, but on the emergency. Counsel responded that there was no need to postpone: she had “absolute” settlement authority.
This statement raised “red flags”. One of the first principles of mediation is “self-determination” which “… is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Standard I- Model Standards of Conduct for Mediators (2005)). I asked myself how the plaintiff could be even making a “free and informed” choice when she was not even present, allegedly available by telephone and counsel had “absolute authority” regarding a settlement.
Although, I raised the issue of the plaintiff not being present and the possible lack of self-determination, the parties still wanted to go forward. I agreed.
So, after speaking with each side to gain an understanding of what the case was about, the plaintiff’s counsel made a demand. I presented the demand to the three defendants who requested to be in the same breakout room. And this is where the lack of preparation showed. For more than an hour, they discussed how much the plaintiff was entitled to receive under the law. When they arrived at an amount I asked if that was indeed what was being offered. In response, defendants stated they had to consult with their clients for authority.
While the defense was consulting with their clients for authority, I checked in on the plaintiff’s counsel only to learn that she had to leave the office for a personal errand and so would be available only by telephone. While normally, this would not be a problem, I knew it would be here as the defense had a detailed response to the demand that required not only writing it down on paper but also analyzing it. This negotiation was not going to be simply trading amounts of money back and forth, or positional bargaining. There would be some interest-based negotiation going on. As the plaintiff counsel’s mind was going to be on a personal errand, I knew this was not going to work.
So… the mediation ended without really having started. And once again, I sense the main culprit to be a lack of preparation. (Other culprits included lack of availability by first the plaintiff and then later her counsel.) Had each party prepared a brief, hopefully, each would have discovered the strengths and weaknesses of their respective cases and thus what would be a viable settlement demand and response. Moreover, it would have required the defendants to confer beforehand to discuss the matter and arrive at a unified response rather than taking an hour or more during the mediation to do so and then seeking authority from their respective clients for it.
It has become my mantra: Be Prepared! One cannot go into mediation “winging it”! A bad result will follow in almost all instances. It is that simple. If mediation is to result in a settlement, the parties must come in having given the matter some thoughtful analysis, and this starts by writing a brief!
… Just something to think about.