The Lawyer's Role in Preparing the Mediator for Mediation

Let’s not forget that as our client’s advocate at mediation we have a job to do in preparing the mediator. Before the Mediation starts, the mediator knows only what he learns from the submissions of the parties beforehand. He can learn more about the parties’ respective positions during the mediation, but it is important to give the mediator as much information about the facts of the case, the opinions of experts, the legal issues, and your client’s position in advance so that the mediation day can progress without the mediator having to probe counsel for more information that was not provided initially.

Mediation Statements

I am frequently surprised at the skimpy mediation statements that my adversaries submit. Often they submit just a few pages which outline not much more than the answer to the complaint, or they misstate or mislead the mediator as to the facts or law.

Seldom are out mediation statements less than 30 pages. They contain a detailed factual recitation that is usually in a chronological order with headnotes broken down by date range, event or some description. We try to make the factual recitation interesting so that it tells a story. In short, we tell the mediator: “This is what the court and jury are going to hear about our client’s case!”

We also include summaries of what our experts are going to say about liability and damages, often in a separate section of the mediation statement with a separate topic heading devoted to “Expert Opinions.”

Then we outline the law focusing on key cases (often attaching one or two cases with key parts highlighted for the mediator). Most often our discussion of the law is based on the jury instructions that we believe will be given by the court. If we are mediating either before a dispositive motion is filed or after it has been filed and before any hearing, we will use a separate section of the brief to advise the court why our motion will be granted or a defense motion will be denied. If our brief has been filed, we will submit a copy of key moving papers to the mediator.

The opening of our mediation statements is usually entitled, “What is This Case About?” In two or three paragraphs we try to outline the essence of the case and the claims of our client – how our client has been irreparably injured by the conduct of the defendant.

We construct our mediation statement so that after the mediator reads this introduction and the first new pages, he/she will say: “I got it.”

Exhibits

The proof of the pudding is in the eating. That is what exhibits are all about. They not only establish facts buy verify the statements in a mediation statement. We include exhibits, which are organized as they are referenced in the mediation statement. Again, we highlight key portions which verify our story about the case. While we do not want to overwhelm the mediator with more than can be absorbed in a reasonable amount of preparation for his/her role as mediator, we also don’t hold back if we need to verify the facts or expert opinions that support our client’s case.

Videos

Seldom do we attend a mediation without a mediation video. I have written a column on these (August/September 2008, Volume II, Issue 8).

These videos can include family photos (in a death or serious injury case), videos of locations where an accident takes place, a series of photos of damaged vehicles or products that are the subject of the case, reenactments and computer simulations, news segments from television reports, interviews of witnesses (such as family members about the value of the lost relationships in death or serious injury cases), key documents with important portions highlighted or enhanced, and event interviews of expert witnesses.

Material that is specially prepared for the mediation and that is not otherwise available to the parties may be labeled as confidential. We always put an admonition at the beginning and ending of our video that it has been specially prepared for the mediation and is deemed a confidential mediation submission. We cannot protect inclusions which are otherwise discoverable or admissible, but we can protect our work product from being used at trial. (Cal. Evid. Code § 1119(b); Stewart v. Preston Pipeline Inc., 134 Cal.App.4th 1565, 1576 (2005)[“videotapes…were…covered by the mediation-confidentiality provisions of section 1119 to extent that they were prepared for the purpose of, in the course of, or pursuant to, the mediation in the underlying action.”].

Private Letters

The confidential, private letter to the mediator is an effective tool in preparing the mediator before the mediation. We use this letter as a means of:

· Advising the mediator who will attend the mediation on our client’s behalf, giving a brief description of their role (client’s family, consultants/experts and our attorneys);

· Providing the mediator with additional information about our experts and consultants (e.g.. medical reports from consultants who have evaluated a part of the case and advised that their opinions would not support a particular damage claim);

· Demonstrating structured proposals;

· Submitting written statements from witnesses that the other side has not obtained in discovery;

· Providing information on insurance and our comments regarding the carrier’s position and approach;

· Providing comments on apportionment of liability among several defendants;

· Providing comments on prior dealings with defense counsel and/or the parties or carriers involved;

· Relaying thoughts on how the negotiations might progress.

The private letter assumes that the formal mediation statement will be exchanged. I am an advocate of exchanging mediation statements. Maybe it will not tell the other side everything, but it will put your case before your adversary. Unless the adversary knows that case, how can its counsel evaluate your position?

Pre-Mediation Conference

I am also a fan of a pre-mediation conference with the mediator. This serves several purposes. First of all, the mediator can outline what is important to him/her (i.e. what information is deemed important for the neutral). Second, the mediator can advise the parties of the date for a timely submission of the written submissions. Third, the parties can exchange ideas on how the mediation should be approached. And, if the parties need additional information before the mediation, they can request such.

Timing of the Mediation Submission

I also believe that any mediation submissions should be provided at least week before the mediation. In fact, weeks before is not too early. It is not effective to submit a several page statement a day or two beforehand. If counsel cannot do better, then the mediation should be continued to a date that will allow the parties to have a full and timely exchange of information, and the mediator will have what he/she needs to give them the best chance for resolution.

What Type of Negotiation Personality Are You

Before representing your client in negotiations, particularly in the more formalized environment of a mediation, it is important to assess what type of negotiator you are. You, your client, and any mediator who is used, must work together to seek a voluntary resolution. That takes a different persona than the advocate at trial. You are indeed still an advocate, but one with a different presence.

Recently I attended a mediation in which we represented a local auto retailer that made available rental cars for its customers and also to employees. An employee rented a car and was involved in an accident in which he was killed and his passenger was seriously injured. Both sued. Our client was named in the lawsuit even though there was a separate subsidiary handling the rental operation. There was a CGL policy which sought to exclude rental cars. The client’s broker had not obtained proper coverage for our client. Faced with a limits demand, the CGL carrier settled and sought reimbursement from our client. We sued the broker as well.

The broker’s attorney was difficult. At a mediation of the cases, he exhibited an antagonist and hostile attitude that interfered with the process. He just did not “get it.” It made the process difficult because my client and the carrier wanted to settle the case. I just did not understand why the broker’s lawyer had to be so difficult. Fortunately, there was a more responsive claims representative from the broker’s carrier present, and based on some excellent skills by our mediator, the whole case was resolved.

Negotiating a case is an active and dynamic process which inserts your personality into the case as an advocate for your client, just as it does at trial. The advocacy, however, is different. Instead of simple persuasion, you are using your skills to cause your adversary and his or her client to recognize the vulnerability of their case, and to voluntarily enter into the process of trying to find a point of resolution before trial. Your adversary must be motivated to seek that resolution, and your approach and personality are parts of the process of that motivation.

Each of us presents a personality in negotiations. There are some lawyers I know who are excellent in most all respects but have a hard time switching hats from pure advocacy to negotiation advocacy, which is a much different process. They are tough, hard-hitting lawyers who can push a case, work it up for trial, handle the motion practice, and try the case. However, when it comes to changing gears to a “negotiator,” they just don’t seem to understand the process well enough to be very effective. As a result, they end up with cases that do not produce good economic results: verdicts between offers and demands, or simply cases where the necessary expense of trial is not warranted, i.e., cases where liability may be strong but the damages or collection of the judgment does not justify a full-blown trial.

My sense of the personality types – generalizing of course – is as follows. Bear in mind that some present a combination of these, or in rare cases, all of these:

· The Aggressive Type – no mater what the discussion, this type tries to take over and control everyone by being very aggressive.

· The Angry Type – everything seems to evoke an angry response, sometimes raising the temperature of the negotiations. Not good, obviously.

· The Hostile/Confrontational Type – wants to give an opening statement in the first caucus to show his or her clients what a great advocate he or she is and how he or she can get in the face of the other side.

· The “I Cannot Work in this Process” Type – just does not understand the process and how one must engage in the “give-and-take” of negotiations. It is a compromise, but this type does not understand that.

· The “Close to the Vest” Type – wants to keep everything confidential; will not exchange mediation statements. For some reason, believes that exploring the issues is harmful.

· The “Unprepared” Type – just is not ready, and may simply be looking for a way to resolve the case and earn a fee, rather than work the case up.

· The “Unrealistic” Type – for many reasons, including lack of preparation or ability to evaluate a case, does not understand the issues or damages; or simply has an highly inflated view of the value or a very low deflated view of the exposure of the client.

· The “Doesn’t Understand the Case” Type – here there is a lack of legal analytical skills and an understanding of what the case is about – legally and not emotionally, usually is the problem.

· The “I Get Frustrated with the Process” Type – has a hard time with the process of “give-and-take” because of impatience, and also lacks a sense of how to move through the process and engage the other side in the negotiation process.

· The “I am Trying to Get the Case Cheap” Type – this applies to the insurance company that believes if it goes to mediation, it will get a “good deal,” and that its representatives are attending a “fire sale,” not a real supervised negotiation. Carriers often approach early mediation this way, rather than taking a serious look at the carriers “down the line” costs plus exposure. Often an insurer will not spend the money to allow its counsel, panel counsel, or coverage counsel to evaluate the case in the real light of day.

You probably can describe others, but each of these represents an impediment to the process, frustrates the other parties and mediator, and simply stands in the way of resolution. For the most part these are “negative” personality types that make it difficult to resolve a case. Those who are not successful in either the negotiation or mediation process most likely exhibit traits of one or more of these types of lawyers in the negotiation setting.

The more positive personality types include:

· The “I Understand the Process and Can Work in It” Type – they know how it all works. Their clients are ready to make decisions and they have provided both the mediator and other side with a solid, well organized statement of the case.

· The “Diplomatic” Type – can present the case forcefully in the calm environment of negotiation process.

· The “I Will be Up Front” Type – “Candor are a lovely virtue.”

· The “Well Prepared” Type – refreshingly well versed in all phases of the case. Could start trial shortly because he or she knows the case.

· The “I Understand the Value of My Client’s Case” Type – realistic about the cost of going to trial vs. settlement; knows the verdict ranges; understands the “present value” of money; has let the client know what the financial benefits are of settlement at this time.

The successful negotiators present a combination of these positive traits. There may be occasional lapses where each of us exhibits one or more of the negative traits during the negotiation process. However, the successful negotiators are aware when these lapses occur, recognize them, and return to exhibiting the positive ones that improve the chances for resolution.

A major problem is presented when we have an adversary who truly falls into the negative personality types and is stuck there. My experience is that usually this type is reluctant to go to mediation; but if it happens, then you need to have a very candid discussion with the mediator beforehand to discuss how to approach the mediation. It may be that the mediator has to exercise some strong influence on your adversary and his or her client to assess how to approach the mediation process.