A monthly series of short articles on successful
mediation advocacy.
Tip # 1: “Manage Their Expectations Before
Mediation.”
The key
ingredient for any successful mediation has nothing to
do what happens when you get there. It is management of the other
side’s expectations before you get to the table. This has to
do with: (1) the education of the opponent about the merits; (2)
demonstration of your mastery of the other side’s case; (3)
clarity about your commitment to the case; (4) and crystal clear
communication about your pre-mediation negotiating position. These
are achieved by written or informal communication about the case,
conveying written settlement proposals, serving mediation briefs,
and avoiding big surprises at mediation.
Coming to
mediation with the other side relatively clueless about
your case or your negotiating position, especially in a significant
case, gives other counsel little chance to condition their client
for what needs to happen. No insurance or corporate professional
can be prepared with adequate authority, without a sense of your
expectations and strengths. Plaintiffs find it hard to rethink a
case (or their life) while at mediation, if they did not see the
arguments coming.
So why are so
many lawyers reluctant to communicate merits or positions
before mediation? There are two familiar reasons. First, we are trained
to be trial advocates and share as little as possible. The more we
surprise the opponent at trial, the better. Second, we feel awkward
conveying messages that might be poorly received, and want a skilled
mediator to handle the painful messages. We might even blow the mediation
off calendar, if we tell the other side what we really think. These
are valid concerns, but must not stop us from skillfully preparing
the other side. If over 90% of all cases settle, with or without
mediation, getting to a fair settlement economically is at least
as important for our clients, as saving a few cards to show in court.
To strike the
right balance, ask yourself three questions going
into mediation.
- Does the other side know, at least generally, what my opening
position will be at mediation? If you are afraid that
you might scare them
away before the mediator gets the case, send general messages
or hint at ranges that would not be acceptable. We lawyers
are great communicators, so find a way to get the message across.
If
all
else fails, ask the mediator to sound out the other side in
advance.
- Does the other side know most of my best points, and appreciate
that I understand theirs? If not, you
are not ready to mediate. Send a
comprehensive settlement package. Have a cup
of coffee after the CMC, and point the other lawyer
in the right
direction. Exchange
briefs before the mediation (highly recommended).
If the opponent thinks that you do not understand
the real
strengths
on their
side,
your arguments will be unnecessarily discounted.
- Are there any facts or law that will take the opposition
by surprise at mediation, which significantly effect my
client’s
position?
Why not tell them now. They
will not get to your range without the information.
If
you need
to see
some realistic gesture
by
the opponent
before revealing it, talk to the mediator about
making that happen in advance. There are always
ways to
reveal enough
to condition
the other side, without giving away the store.
Managing
expectations is not easy in our litigator’s culture,
but it is the essence of successful mediation. Think about it before
you come to the table.
Each month
I will explore one new tip to using mediation successfully. Next month:
“No
Surprises Please.”
