How to Achieve the Best Results in Mediation
by Karin S. Hobbs*
When a client walks into a lawyer's office and begins to recount seemingly endless details of a legal problem, the lawyer usually begins mediation preparation. Ten years ago, the lawyer may have set aside much of that information and transformed the "relevant" portions into an intricate web of legal claims and defenses. Today, a lawyer familiar with the mediation process will carefully note and discuss the client's interests and needs and may approach resolution of the problem from a different angle.
Lawyers are there to solve problems. Traditionally, lawyers have filed lawsuits as the expected mode of dispute resolution. However, lawyers and clients have learned that litigation often escalates emotions, increases costs, confuses the dispute, and delays resolution of the problem. Further, litigation almost always results in a win for one side and a loss for the other. Mediation, in comparison, is less expensive, significantly faster, and provides a solution that both sides agree upon. As a result, mediation has become an increasingly attractive method of resolving disputes.
Because the judicial process and the mediation process are vastly different methods of dispute resolution, mediation preparation differs dramatically from that of litigation. The judicial system is premised on the theory that if both sides present evidence to a neutral judge or jury, the truth will surface, and the fact-finder will resolve the dispute fairly. In mediation, however, it is the parties who identify the issues, their interests, and their needs to determine whether-considering all the risks- they can resolve the dispute fairly. The parties are the decision-makers and are empowered to make decisions in the context of mediation. In litigation, however, the parties are asking attorneys to speak for them and for a neutral to decide the case. Judge-imposed solutions are often viewed as unfair, unjust, or legally flawed and often lead to appeals and a continuation of the dispute. Mediated settlements, on the other hand, are not consummated unless they are mutually satisfactory.
Preparing for mediation begins the moment the client begins to describe the problem. The attorney must understand the mediation process and the central importance of the client's interests, needs, and participation in the process. Zealous advocacy exists in mediation, but the form of advocacy is different because it is the parties themselves who reach a mutually acceptable agreement. Therefore, the client's interests and needs are of critical importance. Anticipating mediation as an option, attorneys may also treat each other with more civility to maintain open lines of communication and facilitate resolution of the dispute.
*Reprinted with permission from the American Arbitration Association's Dispute Resolution Journal.
Direct and Honest Statement of Facts and Issues
Attorneys should prepare for the mediation conference by distilling the relevant facts into a concise, direct, and honest statement. Because the parties will likely exchange specific offers to resolve the dispute, both sides must come equipped with current information that will assist in proposing options for settlement. If attorneys and clients view mediation as an opportunity to openly share information and possibly avoid costly discovery, both parties' interests are served even if the case is not settled.
Although much of the factual preparation for mediation overlaps with preparation for litigation, notable exceptions exist. Unlike litigation, the attorney should prepare the factual statement using neutral language and should be mindful that it is the parties who need to reach a satisfactory solution. Concealment of issues will likely be unhelpful and may diminish trust between the parties. Also, because emotions run deep in most cases, attorneys and clients should avoid creating a contentious environment. At the same time, a statement of the facts that ignores the emotional backdrop may not honestly communicate the state of affairs. Thus, an attorney in a mediation conference is striking a balance between reciting the facts honestly, while carefully phrasing the facts in neutral language. If an attorney can empathize with the other side, concede weaknesses, and diffuse hostility, this will create a friendly environment and may expedite resolution of the case.
Identify Client's Interests and Needs
Prior to the mediation, the lawyer should ask the client to identify the interests and needs that are motivating the case. Interests are items such as fairness, justice, preserving relationships, and establishing legal parameters. Needs include minimizing costs, expediting resolution of the problem, paying pending bills, and terminating the emotional drain. During the initial consultation, the client may have revealed much of this information before the attorney transformed the client's statements into legal claims and defenses. Mediation focuses on not only the legal claims and defenses, but also the client's interests and needs. By satisfying the underlying interests and needs, parties can often arrive at a mutual resolution. Frequently, parties who have focused primarily on their legal rights and remedies are pleased to shift the focus to the remaining portions of the problem not articulated in legal documents and sometimes not capable of resolution through the judicial system. For example, a person bringing a wrongful termination action may accept a letter of recommendation from the former employer in lieu of regaining his former position or pursuing a protracted lawsuit against the employer. His underlying interest may be securing employment rather than rejuvenating his relationship with the former employer or fighting the employer in court. Similarly, a corporation may prefer to repair its relationship with another company rather than continuing to litigate terms of a contract between the parties.
Choosing a Mediator
In most settings, attorneys select the mediator. Different mediators have different styles, and lawyers should be aware of the three primary approaches to mediation: facilitative, analytical, and evaluative. A facilitative mediator attempts to facilitate discussions between the parties by keeping the process orderly or setting meetings. An analytical mediator assists the parties in assessing the risks in the case, while an evaluative mediator not only manages the negotiation process but also reveals an opinion of the offers. Some claim that the evaluative approach can undermine the client's ability to become empowered to resolve the dispute. In practice, many mediators adopt several of these approaches or progress from one style to another during the course of the mediation. Generally, attorneys assess the case and choose a mediator whose style and stated purpose will best assist in satisfactorily resolving the dispute.
Developing a Plan
Lawyers take seriously the duty to fully represent their clients. Mediation provides new opportunities for zealous advocacy, sometimes even greater opportunities than those available in court. Initially, attorneys should assess key evidence, and strengths and weaknesses of the legal aspects of the case. The attorney should analyze the best, worst, and likely case scenario along with approximate cost of each scenario. The lawyer should share this information with the client and determine the client's ability and willingness to fund litigation. The lawyer should discuss with the client the portion of the lawsuit not set forth in the pleadings. Many attorneys will be uncomfortable with exploring this aspect of the case, because it cannot be compartmentalized as a legal claim or defense, but perceptive attorneys realize that emotional underpinnings must be acknowledged before clients can begin to rationally address settlement. Once an attorney has obtained this information, he can formulate a plan. New information may emerge during the mediation process, and attorneys and clients should prepare to be as flexible as possible.
Understanding the Mediation Process
Once the facts, issues, interests, and needs are identified and a plan is developed, attorneys and clients must now become familiar with what to expect during the mediation process. The mediation process has approximately six distinct stages: opening statement by the mediator; opening statement by counsel and parties; private discussions or caucuses; brainstorming options for settlement; negotiation; and reaching an agreement.
1. Opening Statement of the Mediator
During the opening statement, the mediator introduces the process, and explains the basic rules regarding mediation. Typically, the mediator will explain that mediation is an opportunity for the parties to take control of the case and determine whether they can resolve the case in a way that suits their interests and needs. Parties will likely be informed that listening is critical in mediation, and they should creatively think of solutions to the problem. The mediator will also cover the parameters of confidentiality and may have the parties sign an agreement to mediate. The agreement will likely include a provision stating that communications during mediation are confidential and not to be disclosed in other settings. Confidentiality is an important component of mediation because candid discussions facilitate resolutions. The mediator may also set out rules of the mediation conference, such as using neutral language to avoid escalating the dispute and resisting the temptation to interrupt the other party. Finally, the mediator will explain the stages in the process.
2. Opening Statement of the Parties
The opening statement allows each party to present its version of the case. In the opening statement, attorneys should identify the players, articulate the relevant facts, and outline the legal and nonlegal issues. Attorneys should carefully prepare the opening statement, mindful that the intent is for the parties to reach an agreement, and that adversarial language, posturing, or entrenchment may either hurt or delay the process. Parties are also invited to make opening statements in most instances and usually take the opportunity to relay information regarding their interests and needs. A carefully crafted statement of a party can be extremely effective in notifying the other side of the interests and needs that are most important to that party. Clients should understand, however, that the opening statement is not the only opportunity to communicate with the other side and some of the more controversial or confrontational information may be best revealed during the private caucusing session and later communicated through the mediator to avoid inflaming the other side.
Verbal Communication
Word choice is critical-words that may seem harmless to attorneys, such as "liability," may carry negative connotations to the parties. "Role" or "involvement" may communicate the same message in neutral terms. Skilled attorneys have an ability to couch the facts, issues, and interests in language that communicates a willingness to examine the case closely, identify the risks, and attempt to resolve the dispute. Parties should also use language that communicates their viewpoint without creating a confrontational environment.
Nonverbal Communication
Body language also communicates. To convey your message, use effective body language. In American society, eye contact is important for credibility, persuasion, and communication. The rule of thumb is to look at the person who is speaking until they have finished, then look away. This creates the sense that you are interested in their message. Looking away can be perceived as not listening. If you are communicating with a person from a different culture, different body language may be preferable. In addition, a closed posture with arms folded across the chest may communicate a lack of openness, whereas relaxed arms may indicate a willingness to listen and negotiate. During telephone communication, pace, pitch, tone, volume, and voice inflection relay different messages. These nonverbal messages are often subconsciously heard.
3. Private Discussion or Caucus
After the mediator has met with both sides in a joint session, the mediator may move the parties into two separate rooms. This stage of the mediation process gives lawyers an extraordinary opportunity to allow their clients to discuss the aspects of the case that are not found in the pleadings, whether or not they are legally relevant. This opportunity to vent personal emotions often leads to greater client satisfaction, because clients feel that someone has listened to them and has acknowledged their feelings. This portion of the process can make some attorneys uncomfortable because it departs from their area of expertise, and delves into the emotional basis of the legal action that does not fit neatly into any legal compartment. However, lawyers familiar with the mediation process have learned that this information is important to the client and must be addressed before the client can begin problem solving. The mediator then plays an important role of determining how much information should be shared, when it should be shared, by whom, and in what manner. The successful mediator strikes a balance between candor, relevancy, and deference to the feelings of both parties.
The mediator also reviews risks in the case with the parties, including the costs of the litigation, adverse rulings, personal and financial ramifications. Parties may need to consider the advantages and disadvantages of testifying as a witness and participating in the litigation process. Typically, the mediator will ask the attorney to describe the weaknesses in the case. This is an opportunity for attorneys to ensure that their clients understand the risks and have realistic expectations. A mediator may agree that an attorney's advice is reasonable or within acceptable parameters, and thus provide support for the lawyer's advice. Attorneys often use the process to fully inform clients who have unreasonably high expectations of the case. Thus, the mediator can be used to reinforce the attorney's statements, illuminate potential deficiencies, or temper a recalcitrant client.
4. Options for Settlement
After the issues are defined and the interests of the parties has been set, the parties will begin to explore options for settlement during caucus. Mediators will typically ask the parties to come up with as many options as possible and will discuss those options. The mediator will use the knowledge from both sides to attempt to formulate options that will appeal to both parties.
5. Negotiation
After the parties have created options, the mediator will take the options to the other side. At this point, attorneys discuss strategy with their clients and determine the manner in which they will negotiate with the other side. The negotiation then begins between the parties. As positive movements occur on both sides, the mediator will highlight areas of agreement, such as the interest of both sides to discontinue expending money on litigation, repair a relationship, or resolve this case. As momentum develops, lawyer and client should try to stay with the process to determine whether they can reach a mutually satisfactory resolution. During the negotiation process, attorneys shift between the role of advocating for the client to supporting the client's decisions. Seasoned lawyers recognize, at some point in the process, that the client has all the necessary information and is able to make an informed decision. At this time, the attorney's role shifts to that of supportive counselor.
6. Reaching an Agreement
In some instances, one party may request additional time to respond to an offer. In that instance, closure may occur at a later date or at a subsequent mediation conference. However, if the parties reach an agreement, they will likely gather in one room or telephone conference to discuss the terms of the agreement. In some instances, parties draft the agreement at that time. In other cases, the parties agree upon a person to draft the agreement. Attorneys should be prepared to discuss the terms of a final settlement agreement, including confidentiality clauses, releases of liens, or other provisions.
Client Satisfaction
When the parties are able to reach an agreement, both parties generally feel satisfied and sometimes elated. Often, both sides feel some discomfort but are pleased with their ability to resolve the dispute. In both instances, they have been empowered to solve their own dispute and have found a compromise that works for both sides. Personal or professional relationships may be restored, the emotional drain of the lawsuit or the fear of testifying is over, and the participants can move forward with their life.
In contrast, in litigation, the losing party may experience disappointment, frustration, anger, or other emotions. As one attorney commented, "The difference between mediation and litigation is that after litigation, my client walked down the hall with his head hanging down; but after mediation, my client was walking on air." Assisting clients to be empowered to make decisions in the mediation context is a skill that many attorneys are finding rewarding and necessary to practicing law.