Originally published in Los Angeles Daily Journal, “Settling Up”, September 22, 2003
INTRODUCTION
What is a successful settlement at mediation? What does it take to get one?
Clearly, it depends on who you are. For plaintiff’s counsel, it is obviously a settlement which approaches or even eclipses the high end of reasonable settlement value for the particular case. For defense counsel, it is one that ends the litigation at the lower or lowest range of possible settlement value while also conserving valuable client resources. For both, it is one which concludes with a high degree of client satisfaction; ideally, your client should be privately pleased with the result and feel strongly that you, as counsel, were the key variable in their obtaining this outcome. Lastly, particularly for experienced trial lawyers, a successful settlement is one which leaves you as counsel feeling good about the outcome, free of any nagging doubts about whether you should have tried the case, and relieved that you won’t be later wishing that you had settled when you obtain a verdict which, after cost adjustments, is actually inferior to what had previously been offered to you and rejected.
Experienced mediators, who routinely resolve hundreds upon hundreds of cases, frequently observe that certain attorneys, whether representing plaintiffs or defendants, routinely “do better” at mediation than many of their peers. In other words, from the vantage point of the neutral, some lawyers with the same case (i.e., same facts, same clients, and same legal issues) will consistently obtain better results for their client at mediation than others would in the same exact situation. This is not a matter of comparing the performance of plaintiff’s counsel to defense counsel in any particular mediation, but rather a matter of comparing one particular plaintiff’s attorney to all other plaintiff’s counsel, or one specific defense attorney to the defense bar in general. It is an undeniable factor, among others, determining why there is always a settlement range rather than an exact value to any case.
Why do some lawyers achieve greater or more consistent success than their counter parts on the same side of the bar? What are the attributes and practices of those lawyers who derive maximum settlement value or results for themselves and their clients at mediation? We know and regularly study what qualities and practices make for a great trial lawyer. But, since so many more cases resolve at mediation than at trial, it has now become essential to identify, and endeavor to teach, what qualities and practices make for a great mediating attorney.
The skill set for those lawyers approaching a pending mediation, rather than a trial, is, of course, quite different, although a good deal of overlap is to be anticipated. Relative to the issue of preparation, both the mediating attorney and the trial lawyer must command, and be able to demonstrate, a detailed and thorough knowledge of the facts of their respective cases. Likewise, their knowledge of the applicable law and understanding of how particular facts will impact upon their legal theories, must be complete if they are to shape an outcome rather than just surrender to one. Intangible factors like timing, presence, and an ability to inspire trust and confidence will deservedly play a role in being successful in either endeavor.
But the mediating attorney may more often be challenged to demonstrate a greater degree of patience, empathy, and an understanding of the other side’s position than is generally required in a purely adversarial setting. In a mediation, they, along with the mediator, face the challenge of ascertaining what, if anything, beyond the always significant variable of money, is motivating their own clients and the opposition. The necessary tools at their disposal are somewhat more subtle than those which trial lawyers bring to bear. As proficient mediating attorneys, they succeed less often by bludgeoning than by whittling away at their opponent, and more often by cajoling rather than intimidating. They know that cooperation is not tantamount to capitulation and that resistance for its’ own sake is of little value. In the end, their accomplishment, while perhaps lacking in the public recognition which trial lawyers crave, can be equally lucrative, less stressful, and oftentimes more consistent with their client’s real needs.
PREPARATION
The lawyers who seem to lead their peers in mediating successfully prepare for mediation with the same zeal and sense of finality which all fine lawyers bring to any potentially dispositive proceeding, such a Summary Judgment hearing, a trial or an appellate proceeding. The mediation is seen as a culminating event, worthy of the highest level of preparedness and strategy, not as a mere bump in the road on the way to trial. While clearly more than just a status conference, it is never accorded an inferior status under a faulty set of assumptions that it is not yet “the real thing.” With experienced mediators often succeeding in resolving 80%-90% of the cases which come before them, there is little reason to treat this day as anything less than the likely final day of the case. Even in the absence of black robes, the American flag, an over-worked court clerk or a hopelessly bored bailiff, it is, for all intents and purposes, the day of reckoning and should be approached as such. But what does that actually mean?
It means that no stone should be left unturned. Verdicts should be carefully reviewed, and where helpful, assembled by both sides for possible future presentation to the mediator and opposing counsel. Potential juror characteristics and the likelihood of a favorable jury response to one’s future position should be closely analyzed in relation to current events and popular culture. Where helpful, statements of non-deposed, but significant, witnesses should be obtained and available in declaration form. Medical records and bills, experts’ reports, present value calculations, forensic evidence, and (in attorneys’ fees case) even your own time records, should all be highly organized and easily retrievable should you opt to share them with the mediator at some point.
Most importantly, the timing of the setting of the initial date for mediation ought not to be treated lightly. Future financial and legal consequences, in the form of upcoming expert witness fees, independent medical examinations, out of state depositions, pending discovery motions or threatened amendments to the pleadings, whether to add a party or a theory, should be forcefully leveraged against opposing counsel so as to make any decision not to settle on your terms an extremely difficult one.
A successful mediation participant will generally set aside an adequate amount of time for the mediation, erring on the side of too much rather than too little time so as to avoid a rushed or hurried proceeding and allow the mediator the luxury of focusing his or her attention entirely upon the facts of your case for that particular day. A well prepared attorney will be certain to bring with him or her those portions of their file which may be necessary to impeach or discredit the other side on major issues. Any misstatements to the mediator should potentially come at a heavy price in the form of lessened credibility and possible embarrassment, not for its own sake, but when that serves the short and long term goals of the case. Wherever practicable, the preparation of exhibits should at least be considered; even presenting just one or two professional looking exhibits can send a message to the other side that you believe in your case and that your client is invested in it, not just emotionally, but financially as well.
All of this preparation, if properly done, is compiled against the backdrop of a firm and candid pre-mediation discussion between each attorney and his or her respective client, as to what the realistic range of value is for the case. Lawyers who do well in mediation spend a great deal of time preparing their clients for this event ahead of time. They treat this exercise as similar to the preparation which precedes a party’s deposition or trial testimony, setting aside an uninterrupted portion of some prior day to coach their client, answer all questions, and give them a clear idea of what to expect at the proceeding. It is a time for realism, not false flattery; a final opportunity to cautiously evaluate both best and worst case scenario.
If done properly, the client should begin the proceeding with a keen awareness of the role of the mediator, agreement upon what the client’s role will be during the mediation, and a full understanding of the task which lies ahead. When done correctly, it can serve the important function of obviating the need for the lawyer “to put on a show for their client.” It allows the attorney to focus on more than just his or her client’s reactions to certain predictable stimuli and dispenses with the need to be constantly placating one’s client and demonstrating outward loyalty to their cause if not their actual needs.
PRESENTATION
Needless to say, the best lawyers submit briefs which are generally succinct, fact-based and, above all, timely. This is done in hope of obtaining an advantage in shaping the mediator’s mental image of the case and identification of the key issues to be resolved. While all neutrals try their very best to be neutral, as in all aspects of life, first impressions do matter.
The more successful mediating attorneys are also more receptive to an exchange of briefs between counsel or, alternatively, have already made it crystal clear to the mediator (in their earlier written submission) exactly what is or is not confidential and why. Despite this, they will still be constantly reviewing and re-evaluating at different stages of the mediation (depending upon its progress) what heretofore confidential information can now be disclosed, or at least hinted at, by the mediator in dealing with opposing counsel, based on a recognition that no party is likely to pay for, or forebear being compensated for, that which they have never seen.
Where an opening statement is deemed to be beneficial and not overly polarizing, it is made in such a away as to demonstrate a complete command of the case and a slightly understated ability to do an excellent job at trial. It confronts and deals with the potential weaknesses of ones own case, rather than ignoring the obvious under the guise of “not educating the other side,” and relies less on saber rattling than on a confident understanding of what it takes to win at trial. It takes advantage of the opportunity to address a heretofore unaddressed party (like an insurance adjuster) about the basics, while also touching upon some of the more subtle points of the case so as to plant some new seeds of doubt among those who thought they had previously “heard it all.” Whether presented in joint session to the opposition or in private caucus to the mediator, it is toned down enough and sufficiently devoid of exaggeration or over-statement as to allow the persons to whom it is addressed to actually hear what is being said without dismissing it as hyperbole or “mere advocacy.” It makes use of emotion, but not at the expense of logic. Where appropriate, it takes advantage of the confidential nature of the proceeding to sometimes do the unexpected: i.e., apologize, express concern or regret, demonstrate an understanding of the other sides’ position, or allow one’s client to make a highly personal, though unsworn, statement.
In private caucus, the better attorneys who engage in mediation appear to strive for, and succeed in developing, an excellent sense of rapport with the mediator. They share the mediator’s goals to the extent possible, appreciate the difficulty of the mediator’s task, and try to offer constructive ideas that are not exclusively one-sided or self-serving. They demonstrate a true understanding of the practical problems faced by the other side and give more than just lip service to the reality that, in a mediation, neither side is likely to get all that it wants.
NEGOTIATIONS
The best negotiators at mediation seem to be the ones who establish and maintain their credibility throughout the entire proceeding. They do not take extreme positions early on, painting themselves into proverbial corners with unrealistically high or low starting numbers, only to then complete the exercise in self-destruction by having to fall back on the old rubrick of “not wanting to negotiate against themselves.” They recognize that it is oftentimes wiser and easier to dig ones heels in at a later time, after the negotiations have gained some momentum, than to do so at so early a stage as to confirm the opposition’s suspicion that “the other lawyer doesn’t really want to get this case settled today.”
Consistently, the lawyers who seem to get the best results for their clients at mediation are patient, flexible and open to creative solutions. The are receptive to the mediator’s suggestions as to when to consider such relatively unorthodox measures as double moves or bracketed responses, whereby one party offers to make more than a predictable move if the other guarantees a like minded, acceralated response. Where warranted, they do not hesitate to share with the mediator, outside of the presence of their own clients, what practical difficulties they face in moving their own client towards settlement and in what ways they require the mediator’s assistance. They freely share their own insights regarding the personalities and motivations which may be driving the other side, but are open to new, heretofore unconsidered interpretations.
Most importantly, this ideal attorney who is fortunate enough to be participating in an ideal mediation, approaches that mediation as if it were a cooperative endeavor, making the mediator “a part of the team” and, again, taking into consideration the realistic needs and predicaments of opposing counsel. They seek to help extricate both sides from the uncertainty and expense of litigation rather than relish in the other sides’ predicament. They strive to be cooperative regarding non-essential settlement terms and allow the mediator to work such terms into the negotiation at an early enough stage as to reduce future obstacles and allow the negotiation to take on that elusive quality of “positive momentum.” They help clear away the underbrush so that an eventual mediator’s proposal, if required, can concentrate primarily upon monetary issues, without the unnecessary distraction of peripheral issues like questionable authority, tax considerations, the timing of payment or payments, or greater than usual concern about confidentiality and liquidated damages
The better attorneys, or at least the one’s who are most appreciated, seem to accord the mediator a presumption of good intentions even when he or she are forced to deliver an unpopular message. These attorneys are able to step back from their own positions and evaluate inherent risks for their clients, not with an eye fixed only upon their client’s factual contentions or moral belief system, but rather with a realistic sense of possible juror perception. In other words, both sides of the case are analyzed, not on the exclusive basis of what their client says “really happened”, but rather, based upon what a future jury is likely to believe may have happened, whether it did or not).
FINALIZATION
In the end, all settlements are a gentle compromise between an uncertain future and a known and guaranteed present one. The best lawyers welcome closure for the sake of both clients and appreciate the benefits of individuals, as well as attorneys, “getting on with their lives.” As such, they take every possible precaution to finalize their hard-earned settlement in such a way as to make it truly a final one which will be fully binding and not subject to second guessing or rescission the next day. They are prepared to enter into, and in fact insist upon obtaining, a Memorandum of Understanding under Section 664.6 of the California Code of Civil Procedure which will be specifically enforceable by the trial judge if for any reason the parties cannot agree upon the language of a post-mediation, formal settlement document. They have brought to the mediation, or have available by fax , all of the parties necessary to accomplish this, without allowing any time zone differences to hamper or obstruct finalization of the settlement.
Where possible, our hypothetical attorney may even have had the foresight to be in a position to now present the other side with a nearly completed formal agreement (but for the amount of settlement), which, given a sufficient allowance of time and computer resources, can even now finalized as part of the mediation itself. This will be done at a time when the level of cooperation among counsel is high, full attention is still focused on the case, and when the mediator remains available to assist in smoothing over any problems which may arise. This can do much to avoid later misunderstandings and allow both attorneys to fulfill their bargained for commitments regarding timing of payment, filing of releases and dismissals, proper court notification or any other executory features of the settlement.
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