What do you know about the other side’s willingness to settle the case and interest in real resolution? He/she may simply be interested in getting “free discovery” or in trying to convince you and your client to take less than the case’s “good faith” value.
Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high. To avoid this, find out beforehand the temperature of your opposition. Will he/she encourage a focused mediation?
Here are some ways to get a read of the folks on the other side:
Direct Contact: There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions. Email is fine for routine matters and confirming dates for case activity and calendar items. I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest. There may be some puffing in the exchange, but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.
Talk to the Mediator: Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.” If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator. I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters. It may be that scheduling the mediation is an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client. Here, a later date than you had hoped for may be preferable.
Talk to Others: Find out who has mediated with your adversary previously and call them. I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on my opposing attorney and his/her client.
Read the “Tea Leaves”: Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case. If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting. Or it may reveal an underlying resistance that you have to overcome. Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.
Put Some Pressure On: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention. These tactics can result in an enhanced interest in negotiations. Sustained pressure can get a case to mediation quickly, but that pressure must be consistent. If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance or meritless objections or evasive responses.
Write a Letter or Email: Face-to-face or direct contact may be too aggressive. If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.
Past Experience: Past experience with the defendant or opposing counsel may be telling. We have had cases against various insurance companies on more than one occasion. I have a good sense for how some of them approach litigation— some are willing to explore resolution at an early stage, others are not. Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such. The timing may be early, after some discovery (such as your client’s deposition has been taken), or after a limited exchange of information.
Check Out Other Mediations Involving Counsel or Parties: I have mediator friends who have experience with insurance company defendants. They often discuss what they’ve heard about those companies’ attitudes and approaches to mediation, without revealing confidences. I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).
These are just a few thoughts on assessing how your adversary and his/her client may approach mediation. It is a good idea to assess and discuss this with your client before committing to the process.
Friday, March 12, 2010
DO YOU HAVE THE RIGHT ATTITUDE ON MEDIATION DAY?
Recently I was contacted by a representative of a local political group that heard some comments I made at a recent luncheon about my frustration with local politics and our City’s government. There seems to be no effort for consensus building and coming to grips with differences of opinion to implement solutions. Each member of our Board of Supervisors seems committed to a particular agenda, with no interest in resolving differences and creatively finding common ground.
The conversation reminded me about how lawyers representing clients in mediation must have a different attitude from that which they carry into the courtroom. As trial lawyers and litigators we emphasize advocacy, putting the right spin on our client’s case to prevail on the issues presented and ultimately obtain the best result in an adversarial environment.
That is not the right attitude for mediation. I have stressed in my writings on this subject the three “C’s” essential to a positive mediation day: Credibility, Confidentiality and Communication. While they are essential you, and your client, need to adopt a different attitude as well – one that fosters the common ground that the San Francisco political leaders seem unable to achieve. In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important that the client understand the difference between advocacy in the courtroom, where we fight hard for our client (taking strong positions on the issues) and the mediation conference room where a less adversarial, and more diplomatic demeanor, is appropriate (while not giving up on the strength of our clients’ cause).
Here are some suggestions:
1. Make sure the client understands the differences of courtroom advocacy and the approach to mediation, where we are trying to get the defendants to pay money to resolve the case. This is the figurative “more with honey” approach.
2. Normally I avoid an opening statement – certainly one that is adversarial. Any initial comments are informational. I say to the defendants: “Here is what you need to hear about our case to evaluate it” or “Here is some additional information about this case that might help you.” No finger pointing, hostility or standing on a soap box. Some lawyers have hostile body language that only raises the room temperature; not good and it sends a bad message to the client.
3. I use the mediator as my advocate. I try to get the mediator to make any adversarial points and be the “Devil’s Advocate” or, perhaps better, the “Angel’s Advocate.” Let the mediator do his/her work by questioning your opposition about its position in the case.
4. I look for deal points we can agree on early in the negotiations to try to move the case to center. No matter how small, if there are points of agreement bring them to the surface early, identify them and paste them into the settlement document that you are crafting (in your mind) as you proceed. Four or five agreed-upon points gets you closer to the final resolution and sets the tone.
5. Make sure the negotiations don’t get sidetracked on a major point of contention. If there is a major sticking point, try to work through it and get as much agreed upon as possible. Be prepared to compromise if the issue is a major one and you know the issue could increase the risk of loss or reduce the client’s recovery.
It is much about attitude. Once the right attitude is embraced by all concerned, the approach focuses on resolution and compromise— and makes settlement more likely.
The conversation reminded me about how lawyers representing clients in mediation must have a different attitude from that which they carry into the courtroom. As trial lawyers and litigators we emphasize advocacy, putting the right spin on our client’s case to prevail on the issues presented and ultimately obtain the best result in an adversarial environment.
That is not the right attitude for mediation. I have stressed in my writings on this subject the three “C’s” essential to a positive mediation day: Credibility, Confidentiality and Communication. While they are essential you, and your client, need to adopt a different attitude as well – one that fosters the common ground that the San Francisco political leaders seem unable to achieve. In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important that the client understand the difference between advocacy in the courtroom, where we fight hard for our client (taking strong positions on the issues) and the mediation conference room where a less adversarial, and more diplomatic demeanor, is appropriate (while not giving up on the strength of our clients’ cause).
Here are some suggestions:
1. Make sure the client understands the differences of courtroom advocacy and the approach to mediation, where we are trying to get the defendants to pay money to resolve the case. This is the figurative “more with honey” approach.
2. Normally I avoid an opening statement – certainly one that is adversarial. Any initial comments are informational. I say to the defendants: “Here is what you need to hear about our case to evaluate it” or “Here is some additional information about this case that might help you.” No finger pointing, hostility or standing on a soap box. Some lawyers have hostile body language that only raises the room temperature; not good and it sends a bad message to the client.
3. I use the mediator as my advocate. I try to get the mediator to make any adversarial points and be the “Devil’s Advocate” or, perhaps better, the “Angel’s Advocate.” Let the mediator do his/her work by questioning your opposition about its position in the case.
4. I look for deal points we can agree on early in the negotiations to try to move the case to center. No matter how small, if there are points of agreement bring them to the surface early, identify them and paste them into the settlement document that you are crafting (in your mind) as you proceed. Four or five agreed-upon points gets you closer to the final resolution and sets the tone.
5. Make sure the negotiations don’t get sidetracked on a major point of contention. If there is a major sticking point, try to work through it and get as much agreed upon as possible. Be prepared to compromise if the issue is a major one and you know the issue could increase the risk of loss or reduce the client’s recovery.
It is much about attitude. Once the right attitude is embraced by all concerned, the approach focuses on resolution and compromise— and makes settlement more likely.
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