The art of mediation–some lawyers have a gift for it right out of law school and some never seem to develop the skill. Most of us have to work at it. However, no matter your skill level, there are certain things that, if you are not mindful of them, will almost always blow up in your face. Below is a list of things that are sure to tank most every mediation.
1. Unintentionally misrepresent your client’s position
You can derail the mediation before it begins if you are not thoughtful and careful in discussing the mediation with your client and/or the other side. For example, if the plaintiff makes an opening offer and asks your client to participate in mediation, your response is critical. If you simply agree to attend, the plaintiff will think that his or her opening offer is “in the ballpark.” You need to be very clear if your client is willing to participate in mediation, but is not willing to settle anywhere near the plaintiff’s opening offer, in order to set proper expectations for the mediation. If the parties arrive at the mediation with significantly different expectations, the mediation is set up for failure.
2. Pick the wrong mediator for your case
In that same vein, your mediation won’t be successful if you don’t pick the right mediator for the job. Be thoughtful and strategic about who (or what) you think will be the biggest obstacle to settling the case. If the other party seems to need persuading, listen to his or her attorney’s recommendation for a mediator to convince his or her client. If your client is the hold-up, find the right person to talk to your client. If the case involves a complex area of the law, make sure your mediator has that expertise. A mediator who is successful in one case solving one type of problem, won’t always be the best choice in a different case.
3. Make an aggressive opening statement
I know it’s hard. Your client is there, and it is almost impossible to resist the urge to show off your amazing advocacy skills in front of your client. The mediator asks if you would like to make an opening statement, and clearly you would be doing everyone a disservice if you did not point out all of the problems in the case—especially to the other side. Here’s the reality: If you are saying it at the mediation, no one on the other side of the table is buying it. So prepare your client ahead of time. Let him or her know that the mediation has a higher chance of success if you do not present an aggressive argument during the opening session.
4. Don’t give the mediator the ammunition he or she needs
Of course, if you are not making the arguments in the opening statement, you have to arm the mediator with the information, evidence, documents and/or case law he or she needs to make those arguments for you. Refusing to share that ammunition with the mediator or the other side out of fear of giving them “free discovery” won’t get your case settled. Draft a mediation statement well in advance of the mediation. Be thoughtful about evidence you will permit the mediator to share with the other side. In particular, share those things that establish untimeliness, failure to exhaust administrative remedies, failure to mitigate damages, limitation of back pay/front pay, after acquired evidence or defenses that will defeat liability.
5. Think that you can wait until after (and if) the mediation fails to work the case
With that in mind, you can’t arm the mediator with ammunition if you haven’t done enough work to know the pros and cons of your case. You cannot wait to see if the mediation fails before you review (and produce) documents or talk with witnesses. You have to know enough about the case to know your pitfalls as well as those of your opponent (and what evidence to use to point them out).
6. Wait until the end of discovery to mediate
But that doesn’t mean that you should work the whole case first! You cannot wait until the completion of discovery before you mediate. By that time, both parties are so entrenched in their positions (and both sides have accumulated so much in fees and costs) that it is virtually impossible to find any middle ground.
7. Forget to check the status of bankruptcy filings
In employment cases, a current bankruptcy filing can wreak havoc with a settlement. You do not want to waste your time, the mediator’s time, and your client’s time and resources on a day of mediation just to find out at the last minute that you cannot settle the case because of a bankruptcy filing. In like manner, a prior bankruptcy filing that has been discharged might give you some judicial estoppel ammunition you need (if the plaintiff knew about the employment claim and did not disclose it to the bankruptcy trustee). So always, always, always, check the electronic bankruptcy docket before the mediation.
8. Don’t know when to be patient and when to speed things up
You have to be patient at mediations. The parties often have to “dance the dance” for some time in order to be ready to make real progress. Things go slow at first. The mediator spends a lot of time in the other room. That’s ok. Be patient and don’t push the process. But once things start moving, you need to be ready for the transition. When the mediator is ready to kick it in gear, you do not want to be advising your client to continue in $500 increments. That is the fastest way to derail the mediation. Stay focused on the tempo of the negotiations.
9. Wait to discuss important nonmonetary parts of the agreement until you have a deal
If it has to be a part of the agreement, don’t wait until you have a final agreement to bring it up. If your client won’t settle unless the current employee quits his or her job and signs a “good bye forever” clause, that issue will seriously change the value of the case. If the offer you make must include all attorneys’ fees and costs, make sure you communicate that clearly. You can’t wait until you have a deal to raise any such issues. Bring up any issue that materially impacts the value of the settlement right away. Discuss with the mediator the right time to bring up other issues such as tax withholdings, confidentiality clauses, non-disparagement clauses, and liquidated damages clauses.
10. Show up without a draft settlement agreement
You have a deal, but now you have to go back to your office and draft an agreement. And you are really busy and have been gone for an entire day at mediation. So it takes you awhile to send a draft to the other side. And the other side is really busy, because he or she has been gone for an entire day at mediation. And they have to get back with their client and review the agreement. Then there are questions or revisions, and they have to get together again to review it. And then everyone gets cold feet. Don’t let the settlement fall apart because you don’t have an agreement ready to be signed at the mediation. Come with an electronic version that can be readily edited, printed and signed at the mediation.