STRATEGIZING FOR EFFECTIVE MEDIATION
Ellen Godbey Carson & Lou Chang
A.
Goals







B.
Why Mediation Fails and What You Can Do To Prevent That





C.
Achieving satisfactory, early resolution which fits the needs and interests
of clients and parties
Achieving results that meet issues and needs which cannot be obtained
through available legal processes
Preserving relationships, confidentiality
Satisfying special relief needs
Obtaining better net results for your client
Getting rid of the dog cases
Identifying appropriate timing for mediation (Ripeness). Obtaining and
creating productive moment for resolution
Lack of participation of real decision-makers or driving forces
Lack of critical information to permit sound decision making
Not all parties are at the same stage of "ripeness" for decision making
Missing critical necessary party (insurer, guarantor, subcontractor, etc.)
and needed degree of decision making authority
Underestimating the potential and possibilities presented through mediated
negotiations
Selecting the Mediator You Want and Need











Determine reasons why direct negotiations have not been productive or
successful
Potential impact and effectiveness with your client and with other
parties/counsel. Ability to earn and create trust and rapport
Identify and consider style (facilitative, evaluative, transformative/narrow or
broadly focused)
Obtain disclosures. Considerations regarding use of mediator with past or
frequent service with involved party, carrier or advocate
Proactive
Demonstrated record of success
Willingness to work hard to achieve resolution
Skill and ability to manage productive negotiations
Source of creative solutions
Training
Ethics and handling of confidentiality requirements. Importance of
understanding degrees of confidentiality and extent to which you can trust
the mediator with secret data or sensitive information or strategy




D.
Exchanging Important Information





E.
Communications with Court and others
Reputation
Subject matter expertise, referrals, Google checks
Interview potential mediator
Use and enlist mediator’s assistance to arrange effective pre-mediation
productive information exchange
Third-party assistance on documents/subpoenas/appointing arbitrator or
decision makers
Substantive interviews of critical witnesses without depositions
Managing productive expert information exchange, tests, reports, round
tables with decision makers
Focus discussion on critical issues (factual, legal, non-legal)
Strategic Considerations




Before or without extensive formal discovery process. Goal is to provide
sufficient information to permit good decision-making. Even before the
filing of a case might be appropriate
Developing strategies for mediation. Control disclosures of information
o
Using mediator to obtain and to communicate important or strategic
information
o
Using mediator to communicate proposals and address sensitive
issues
o
The mediator’s proposal and reactive devaluation
o
Provide input to mediator before proposal is communicated
o
Have understanding of how a mediator’s proposal will be handled
o
Is proposal within applicable limits? If not, what options exist?
o
Hypothetical bargaining, the “what if…” discussion
Arming the mediator for effectiveness
o
Determine what information is best presented by a party or
representative and what would best be communicated by or
through the mediator
o
Timing of disclosures and how much
o
Site visit, key witnesses, key evidence
o
Identify anticipated problems to mediator
Opening statement. Mistake to forego opening? Opportunity to speak to
opposing party and evaluate their strength as a witness. Set desired tone
appropriate to case. Firmness but open to resolution. Use demonstrative
exhibits, power-points strategically for desired effect
2












F.
Create best environment possible for resolution. Choose strategies –
Power, positional or interest-based or a combination thereof. Be guided by
what will be productive and effective. Consider tone and creation of
conducive spirit for mediation. Decide if client should speak.
Understanding the drivers of the dispute, emotions, reputation, lack of
facts, etc.
Cooperation, collaboration with mediator in designing process and
strategies.
Design format of the mediation process to maximize success.
o
Meetings of principals, experts, logical subgroups
o
Meetings of principals or advocates only
o
Issue focused expert roundtable
Management of critical legal issues, early dispositive motions, private
evaluations, untested novel legal issues
Planning the process to fit the fuss, root of success is in the preparation.
Design needed or helpful pre-mediation steps
Help mediator shape or change the paradigm of thinking to promote
resolution
Determine if case and negotiations would be more productive with the
involvement or input from experts. Provide for productive involvement or
input from experts without expensive discovery
Knowing your best alternatives to a negotiated agreement for your client
as well as the other parties involved
Gain clarity as to who needs to actively participate. Lack of active
participation of necessary decision makers is one of the primary reasons
mediations fail
Motivators for resolution, cost benefit analysis, tangible and intangible
values.
Explore hidden interests, options and issues. Business, personal, nonlegal issues that may give rise to creative options.
Be open to creative solutions that may meet needs and which could not be
achieved through litigation
Pre-mediation Statement



Public and shared statement setting forth facts and issues
Private or confidential for the mediator only mediation statement setting
forth controlled information, information regarding relationships between
parties, history, potentials for ongoing relationships, ideas and
opportunities for “win win” outcomes, creating value and ideas for
solutions.
Content of a good mediation statement
o
How dispute arose?
o
Who are the important players?
o
Key factual and legal issues. Areas of agreement/disagreement.
o
Are important non-legal concerns a factor?
o
What barriers have made negotiations difficult?
3
o
o
o
o
o
Legal posture of case
History of offers/counteroffers made, if any
Is there any critical missing information?
Are interest based, “win-win “ opportunities available?
Key portions of critical documents or evidence mediator should
know.
G.
Ethical Issues

Confidentiality. Multiple levels and aspects of confidentiality (party, Court,
public)
o
Rule 408: evidentiary rule/limitations
o
Confidentiality or mediation process and actions vis-a-vis third
parties
o
Confidentiality of information provided to mediator which is not to
be disclosed by the mediator to anyone without subsequent
permission
o
Considerations for Court- appointed mediator with authority to order
participation, impose sanction and report to the Court
o
Be clear with the mediator as to information to be kept confidential
o
Strategic choices with regard to timing and use of confidential
information
o
Communications with and to the Court. Use and engagement of
the power of the Court
o
Rule 1.6 - Confidentiality and the duty to disclose

Rule 1.4 - Communication - assisting the client in informed decisionmaking

Rule 2.1 - Advisor, "render candid advice", advise of ADR options

Rule 4.1 - Truthfulness in statements to others

Be clear on the limits of zealous representation, truthfulness of
representations and honesty in assessment of cases vis-a-vis the client,
the mediator and opposing counsel.
H.
Working With an Unrealistic Client

Educating the client.

Understanding and identifying needs and interests

Provide productive opportunity for client to listen and be heard

Mediator evaluation- specific disputed legal issues
o
Desired specificity
o
Valuation evaluation can impact negotiations in positive or negative
fashion. Need to be selective and strategic.

Grey Sheets data/ranges

Protecting the advocate as champion

Mediator reality testing

Transforming risks/achieving interests
4

Managing emotional aspects
o
Venting-dialogue-cause-appropriate response
o
Grieving & reactions to loss, acknowledgement, apologies,
forgiveness, acceptance
I.
Working with an Unrealistic Advocate

Identify the cause(s)
o
Lack of information
o
Lack of preparation
o
Uncertain legal issue
o
Lack of precedents
o
Emotional component
o
Conflicted interests
o
Positional tactics leading to impasse

Managing unreasonable expectations
o
Grey sheets data/ranges
o
Negotiation coaching
o
Cost benefit analysis
o
Risk analysis
o
Bluster and subterfuge

Management of opposing counsel, managing incompetence, unreasonable
or bad advice, mis-evaluations and client control problems

Working with hold out party or insurer. Bad faith considerations. Settling
around hold out party.
J.
Securing the Settlement Agreement

Get it done while its hot

Recite intention of parties to enter a binding agreement. Example:
We intend that this memorandum shall bind each of us . . .. [W]hile
we understand that formal documents will be prepared to facilitate
the detail of our agreement contained here, we do not intend our
settlement agreement to be dependent upon our agreement as to
any such detail, and agree that our agreements contained herein
are fully enforceable against us. . . . [T]he dispute has been settled
by the agreements contained here and the settlement is not
conditioned upon any further agreement.



Mini arbitration provision for a Court or designated arbitrator to resolve
language issues
Convert mediation to arbitration for interpretation and enforcement
concerns
Bring and circulate drafts of proposed settlement agreements where
appropriate
5
K.
Best Practices

Meet with mediator early to discuss and design appropriate process,
timing, ground rules and protocols

Clarify levels and degrees of confidentiality. Confirm mediator’s
commitment to confidentiality

Insist on active involvement of all decision makers/stakeholders

Identify, gather, prepare the data and information needed to maximize
potential for a productive and successful negotiation

Prepare your client on the
o
Process
o
Client’s role and interaction with the mediator (in private and joint
meetings) and other parties
o
Confidentiality rules in play. Degree to which information will be
provided to mediator/other parties
o
Availability of private meetings

Prepare a negotiation strategy and coordinate & enlist mediator’s
assistance to execute the strategy. Work with the mediator to design and
shape a mediation process that will work best for your case and
circumstances
6