How lawyers help mediators settle cases
July 29, 2011
Topic: About Mediation
Mediations settle many cases, and good mediators settle more of them. But in my experience as a mediator, lawyers help mediators settle far more of them, and on more favorable terms for their clients, when they bring four assets to the mediation: their ammunition, an open mind, credibility, and their decision-makers.
[Ammunition]: Mediators have no authority to require anyone to agree to anything at a mediation. So we use our legal knowledge, experience, credibility, creativity, and diligence to find the common ground that often exists. However, the best lawyers enhance those mediator skills by providing the mediator with the “ammunition” to be even more persuasive.
What do I mean by “ammunition”? You know your case better than your mediator does (at least at the outset). Provide your mediator with everything you can think of to persuade your opposing party to come to the settlement you and your client want:
Offer facts that show will your opponent will lose big – or will win little – if the case is not settled. Consider exhibits: the “picture that is worth a thousand words.” Those “pictures” help your mediator persuade your opponent. Find those exhibits – in employment cases, they are often emails – and get them to your mediator. Provide witnesses who verify or vouch for your key facts, decision makers, the accuser, or the accused. Have a key witness attend in person even for a short time, or available by phone to talk with the mediator (and possibly opposing counsel), or at least a penalty of perjury declaration. For deposition testimony, don’t paraphrase it; quote it, and bring the deposition to prove it. Gather the best legal decisions that illustrate your key points. Present the risks that your opponent will face if they do not settle today, e.g., the grant or loss of summary judgment/adjudication, diversion of management time, emotional wear and tear of lengthy litigation, difficulty of finding future employment if the case continues, publicity risk, cost of prosecution or defense.
The more such ‘ammunition’ you provide your mediator, the more effective your mediator will be for the result you want.
Some lawyers do not seem to appreciate the importance of bringing all their ammunition to the mediator. They expect the mediator will simply talk their opponent into the result they want. Of course your mediator should think of good points to influence your opponent. But two heads are better than one. Arm your mediator with the kind of ammunition described above.
[An open mind]: Attorneys and their clients should come to the mediation with a clear goal for where they are willing to settle. At the same time, they should have an open mind for what they may learn when they get there: an open mind both about the merits of the case and about ways to settle it.
For example, in a retaliation case, plaintiff had clearly complained to upper management about his supervisor. Yet the complaints appeared to be primarily about the supervisor’s personal morals, misuse of the employer’s property, and ‘unfair’ treatment. I pressed plaintiff’s counsel about whether those complaints were sufficient to state a public policy claim under [Foley v. Interactive Data] and its progeny.
Counsel with an open mind take such mediator probing of their case and their risks as an opportunity either to provide the mediator ammunition to move opposing counsel toward their position or to recognize potential shortcomings in their own case that may warrant movement toward the opponent’s view of settlement.
Similarly, sometimes defense counsel and their clients do not have an open mind about how unfair a particular action or course of events appears. Unless you are positive you can obtain summary judgment, listen to the mediator’s comments with an open mind about how the case appears to a third party.
The value of an open mind applies also to ways in which settlement may be accomplished. In one case, the parties had reduced their differences to a reasonable dollar difference but further movement was not forthcoming from either side. Then plaintiff’s counsel, with an open mind, pointed out a way in which defendant could legitimately enable plaintiff to get extended unemployment benefits that had thus far been denied. The extended benefits bridged the gap and the case settled.
Similarly, reinstatement worked to settle the case in one instance, and a thorough discussion of that possibility in another case led both sides to opt for a money settlement instead.
So bring an open mind to the mediation, both in terms of the strengths and weaknesses of your case and the variety of ways in which a case may be settled. Your open mind increases the chances for settlement, and even if you don’t settle, you will leave the mediation with a much better understanding of the case than you had when you arrived.
[Credibility]: A fine lawyer friend once commented to me – only partly in jest – that mediation is “the one legal proceeding where it is permissible to lie.” In a sense, that is true, because everything said in the mediation – as opposed to the settlement agreement itself – is inadmissible. However, while lying may be “permissible,” credibility is so important to success in mediation. Just as the mediator must have credibility with the parties and counsel, counsel must establish and maintain credibility with the mediator, because if the mediator does not believe you, you are not getting the result you want and may deserve to get.
The value of counsel credibility manifests itself in two ways. First, factual credibility: Counsel told me that two witnesses would testify to a key fact. When I asked that they attend the mediation, the response was “they can’t.”“ When I asked if they were available by phone, the response was, “they aren’t.” How about signing a declaration? “Can’t do that either.” How much credibility do those two witnesses – and counsel – have after that exchange?
Second, credible signals: Counsel need to give the mediator credible signals as to what they will and will not accept. For example, near the end of a mediation, I told both counsel that I thought the case could settle between X and Y. Neither counsel objected then or later, which led me to believe that the parties would accept a number within that range. But after I made a mediator’s proposal that was fairly close to the X number, counsel who benefited from the X amount then announced they could never accept X. Counsel needed to tell me that before the mediator proposal, not after.
Bottom line: Be credible with your mediator. Everyone knows both counsel are negotiating with the mediator to get the best deal for their client, but you will be more effective if you maintain your credibility throughout the process.
[Bring the decision-maker to the mediation]: Having the decision-maker present is important where the party is a company or other kind of organization. When the decision-maker is not present, the advantages of settlement and the risks of not settling are often not fully conveyed to or appreciated by the decision-maker, so the opportunity to settle can be missed. Furthermore, when I was an advocate, I wanted the decision-maker present, so he or she knew what the risks were and what the case could be settled for. When the decision-maker is present but chooses not to settle, counsel has better protection against being second-guessed later in the case.
Similarly, where the party is an individual, obviously he or she must be present. But I have also had several situations where the individual brought a spouse, family member, or friend to the mediation, and so far it has had a positive effect. For example, sometimes the individual plaintiff is very emotionally involved in the case, so their having a trusted family member or friend present may bring more objectivity to the value of ending the litigation now.
If you bring those four assets to the mediation, a settlement is more likely, and more likely to be favorable to your client and you.
Howard C. Hay practiced employment law for 38 years in Orange County and Los Angeles before retiring from active law practice in 2009 to focus on resolving cases as a mediator.