A monthly series of short articles on successful
mediation advocacy.
Tip # 6: “Use the Mediator.”
Mediation is
becoming so commonplace that many attorneys go through
the familiar routines of the process, without really using mediation
and the mediator fully. Posturing from extreme positions, and butting
heads over money in the usual format are not the best approach to many
cases. Mediation can be used more creatively, to address your toughest
problems, while getting to settlement. The key is to enlist the mediator
as your ally in dealing with these issues. In other words, tell the
mediator what you need and ask for help.
Every case
has its unique challenges, which must be successfully
addressed to achieve an acceptable outcome. They may involve a complex
analysis of the facts or law, or more subtle concerns. In some cases,
a temperamental client will require special handling. In others, opposing
counsel may be a difficult personality, or have an unusual approach
to the dispute. The client, or a key witness, may be someone who will
inspire a profound reaction (sympathy or loathing) from a jury. When
the case is approaching mediation, ask yourself this question: What
can the mediator do to help me address the unique challenges of this
case? Next, let the mediator know.
A common
problem is one’s own client. If the client is too
furious, distraught, or bullheaded to follow or even hear your advice,
it is tough to do your job with any hope of client satisfaction. Why
not call the mediator beforehand to brainstorm about what your client
needs to make a rational decision? Level with the mediator about the
issue. A skilled mediator can usually find a way to ease such clients
into a fruitful discussion, with your help identifying the issues.
For example:
- An attorney with an obstinate client, who did not trust
his attorney, took me into the hall early in a mediation. He told
me to please not ask him to discuss the negative features
of the case in caucus with his client. He would lose the client,
and the client already
thought he was too negative. We decided that I would be the bearer
of bad news while the attorney argued the client’s irrational
position. He stayed in the client’s good graces. The client
heard the bad news from a neutral source, and settled.
- Counsel for
a distraught parent of a child killed in an accident asked to speak
with me before mediation. It was a very tough liability
case for plaintiff, which the attorney did not want to try. His client perceived
the litigation as “fighting for her son” and would not
compromise. We needed a way for her to demonstrate her support for
her son, other than having the attorney fight a losing battle at
trial. We conceived of a monument to her son, funded by the defense,
and other
measures to avoid future accidents of the kind which killed her son.
This was negotiated before butting heads over money. Case
settled.
Advance
communication with the mediator can also help with the substantive
issues. One of several defense attorneys for a target defendant called
me before a mediation to request that I coach plaintiff’s counsel
to emphasize covered claims, in the brief and joint session. I got
those lawyers together by telephone to strategize, changing the focus
of plaintiff’s presentation. The case settled largely with insurance
funds.
You may also
use the mediator to structure the process in creative
ways. Joint sessions can be done in many ways or bypassed, as discussed
in a previous “Mediation Tips” article. Advance discussion
about who should be present (or who should not) may help the mediator
get the right people to the table. Private caucusing can also be adjusted
to suit each case. Let the mediator know what you feel the client needs
to hear or discuss, or the tone that would most effectively reach your
client (or the opposing party).
If your main
difficulty in a case is the obstructive opposing attorney,
tell the mediator and strategize about how best to handle interaction.
A mediator who is warned in advance to avoid unproductive interactions
or topics will be better prepared to serve you.
Much of this
may be picked up by an intuitive mediator without being
told. Why take the risk, or bumble through part of a mediation while
the mediator tries to pick up on the dynamics? Use the mediator to
help you with your toughest issues.
Next month we
will consider: “Interests Really Matter – Even
in Money Negotiations.”
