Making Mediation Work

The Bencher—March/April 2016 

By Christina Magee, Esq.

What makes mediation succeed? While the list below does not purport to be exhaustive, and each mediation presents its own unique circumstances, here are a few insights from a mediator’s point of view into the characteristics present in successful mediations. If the mediations you are involved in are not resolving to your satisfaction, consider whether any of the items below are missing.

Choose the Right Mediator for Your Case

This statement is not as self-serving as it seems. Picking a mediator may not be as simple and straightforward as it might appear. You need to know your mediator, his or her background and experience, and the mediator’s “style.” For example, in a mediation involving a contract dispute between a manufacturer and a selling agent over distribution and promotion rights for a product, one of the ways to resolve the dispute may be to modify the contract so that the formerly exclusive sales rights of the agent become non-exclusive. In that context, there is value to promoting and preserving the parties’ relationship with one another, and thus, looking at interests that are not purely financial makes sense.

Contrast that scenario with a typical auto accident, where an insurance representative appears for the defendant driver, who neither has nor wants a long-term relationship or interest in the injured party. The insurance company wants to close the file, the injured party wants to resolve the damages claim, and the bulk of the discussions that take place in caucus will be about money, not other interests of the parties. A mediator who understands this process and knows when to advance discussions about financial interests and when to direct the discussion to non-financial interests is more likely to get you to a settlement result than a mediator who does not.

Of course, style also includes a mediator’s ability to project optimism and the ability to solve problems, especially when the parties see no way to bridge the chasm between the offer and the demand. Tenacity and patience are two other hallmarks of a mediator who will get you to a result.

Be Prepared

It’s accepted wisdom that the party who is best prepared usually “wins” the day—a concept no less true in mediation. Just knowing your case and analyzing risk may not be enough.

Here are some other aspects of mediation preparation that you should be considering:

• In a complex case where multiple defendants are involved or multiple plaintiffs have individual claims, how will each of those interests be satisfied? Where do the interests between the parties on each side of the case align and where do they diverge? Does the area of divergence present an opportunity to leverage settlement?
• What are the “hidden” interests of the parties? What factors other than the mere resolution of the lawsuit are driving the parties’ positions? Is plaintiff wedded to a certain net number because of plans for how to use the settlement?
• In a catastrophic case involving serious bodily injury, have structured settlements been explored? Has the information been provided by plaintiff to allow the defense to get an annuity where the plaintiff has been “rated up”?
• Are all the necessary and correct players in place and on board to settle? From the defense side, this may mean ensuring that adequate authority is available to settle the case. From the plaintiff side, this may involve pre-settlement negotiations with lien holders who must release their claims as a condition to settlement.
• What local rules, statutes, or judicial orders govern the mediation process? Ensure that your process is being conducted accordingly, so that the end result is not subject to attack for failing to adhere to the governing law.

Know Your Clients

How will your client respond to the cold, hard, dollars-and-cents evaluation that the defense offers? Comments such as “I can’t believe that is all they think my wife’s life is worth” are natural and expected from a plaintiff in an injury case. To resolve the case, someone in the plaintiff’s room has to be thinking about the compensable aspects of the case and be able to move beyond the genuine emotion caused by the injury.

On the defense side of the case, know how your client will respond to the “stratospheric demand” that plaintiff will present. Will your client want to impasse immediately or back up from a prior offer? How will your client respond to the mediator’s request that the defense consider splitting the difference between the plaintiff’s $100,000 demand and the defense’s best offer of $50,000, where there is consensus that the litigation costs would exceed $15,000?

Have a Strategy for the Mediation

Another obvious point, but one that bears repeating. What is the endgame? Do you have a second-to-last number before you go into the session? Considering in advance your “best alternative to a negotiated agreement” and your “worst alternative to a negotiated agreement” is a useful preliminary step to formulating a strategy.

So much more can be implemented to make your mediation a success. What are the non-monetary “deal-breakers” that have to be resolved? For example, in an employment case, it may be a “no rehire” provision when a former employee sues for discrimination, or from the plaintiff’s perspective, a guarantee that only a neutral reference will be provided to any future employer. Are confidentiality concerns present and how do they get resolved?

Think Creatively

You should expect a mediator to have some capacity to facilitate creative solutions to problems, and being able to do this to some degree with your clients before mediation is helpful. Does the plaintiff have a credit problem? Is the defendant a manufacturer of equipment that the plaintiff could use if it were provided as a part of the settlement?

Define Your Successful Outcome

Usually this is a settlement or resolution of the claim. In some cases that appear in the civil context, an outcome short of settlement can be the goal. For example, in a case involving a product that is the subject of multiple, unconsolidated actions, a mediation outcome could be an agreement to establish a “test case” that would be outcome-determinative on issues in several of the other cases. Defining the goal allows you to assess whether you are close to achieving it.

Be Tenacious and Focus on the Goal of the Settlement

Usually, about four hours or so into a mediation day, the parties begin to despair of settlement. Possibly, there has been a joint session and several rounds of caucuses. Demands and offers, and subsequent demands and subsequent offers, have been put on the table. The numbers seem to be too far apart, no progress is being made, and the mediator is spending all her time with the other party.

Be ready for this dynamic. Mediators are typically attuned to the time issue, and try to keep the parties on both sides feeling equally well-served with the mediator’s attention. It is also the case that where a “professional defendant” appears at the mediation—namely, an insurance representative who is clearly well-versed and experienced in the process—the mediator necessarily has to spend less time with that party to explain what’s going on and what it might mean. Use brackets or other conditional offers to test whether the gap can be closed and to uncover what the parties’ true ranges for settlement might be. Stay alert to the idea that the parties will usually settle a case once they reach a mediation session and the longer you stay at the table, the more likely it is that settlement can be achieved.

Make the Money Talk

Have a reason for the numbers being offered or demanded. When the mediator is reduced to sending numbers back and forth between the parties, not much can be accomplished. What is the basis for the number? Where do you want to go to resolve the case? How can you signal effectively to the other side where you want to end up with your number?

Force the Opposite Side to Make a Hard Choice

Having done a lot of preparation, including having a strategy, clients and counsel will know when their offer/demand to the other side makes the other side think twice before simply walking away. Unless there is some risk, it is too easy to abstain from further offers and continue to play out the litigation.

Be Patient

The last, and perhaps most significant, technique that aids in mediation is to be patient. Parties come to mediation prepared to settle but also prepared to go to war. Uncoupling advocacy from the process can and does take time. Witness the number of cases that settle after the mediation day has concluded. Transforming expectations from an advocate’s all-out win to a compromise result is not always an easy or quick process.

Christina Magee, Esq., is a Florida Supreme Court Certified Circuit Civil, Appellate, and County Mediator and is the founding principal for Brevard Mediation Services, LLC, in Satellite Beach, Florida. She is a member of the Vassar B. Carlton American Inn of Court.

© 2016 Christina Magee, Esq. This article was originally published in the March/April 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.