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Most commercial litigators pride themselves on their trial advocacy
skills. To be sure, an effective commercial litigator must be
an effective trial advocate. But to be truly effective as a commercial
litigator, a lawyer must have more than trial advocacy skills.
The simple fact of the matter is that most cases are resolved
short of trial. According to a recent report in the New York
Times (December 13, 2003), less than two percent of federal civil
cases are resolved by trial. A substantial majority of cases
are resolved through settlement.
These statistics are somewhat distressing for those of us who
truly enjoy trial work, but they also serve to highlight the
need for an effective commercial litigator to develop skills
beyond trial advocacy. To be truly successful, a litigator must
be able to achieve effective settlements. That is, settlements
that advance the clients’ interests in the most cost effective
manner. Mediation is one of the best ways to do that.
Types of Mediators
The point of mediation is not merely to split the baby or
bridge the gap between the parties’ mutual settlement positions.
The point is to obtain the best settlement possible. Perhaps
the first key to effective advocacy in mediation is selecting
the right mediator. Most mediators fall into the category of “facilitators” or “evaluators.” Some
folks would add a category of “arm-twisters,” but
usually the arm-twisters can more fairly be categorized as either
facilitators or evaluators, and their arm-twisting tactics are
simply that: a tactic.
A facilitator is a mediator who encourages the parties to find
common ground. A facilitator’s primary focus is in urging
the parties to communicate with each other in an effort to achieve
a settlement that is truly a product of the parties’ efforts.
Facilitators typically do not pass judgment on the parties’ positions.
While it is an over simplification to suggest that facilitators
merely shuttle back and forth between the parties, carrying messages,
they are often perceived in that way by the parties. In the appropriate
circumstances, a facilitator can be quite effective. This is
particularly true where the parties obviously recognize the benefits
of settlement and perhaps need some help getting over the hump
(perhaps there are personality issues, issues of saving face,
or a fear of making the first move towards settlement).
By contrast, evaluators do more than simply encourage communication
among the parties. To be sure, an effective evaluator will encourage
communication among the parties, but an evaluator goes beyond
that to explore the parties’ positions, raise questions
regarding the positions and expose potential weaknesses (preferably
in a non-threatening way), and candidly acknowledge strengths.
A good evaluator will not attempt to force his or her opinions
down any party’s throat, but should give honest feedback
about strengths and weaknesses.
An arm-twister is more likely to attempt to coerce a settlement.
If the arm-twister is a facilitator, they will do this through
harping on concerns of the cost of litigation and the risk of
going forward. If the arm-twister is an evaluator, they tend
to focus undue attention to the weaknesses of a given party’s
case, and the strengths of the opposing party’s case. Arm-twisters
can be effective, although a mediation brokered by an arm-twister
is likely to leave a bad taste in the mouth of one or both parties.
Preparing the Client for Mediation
Critical to the success of any mediation is properly preparing your client.
Clients need to know how the mediation process works, although more sophisticated
clients should be familiar with the process. More importantly, clients
need to understand your approach to mediation. What do you hope to accomplish
in the mediation? How do you propose getting there? Who will take the
lead role, and how, if at all, will that change as the mediation progresses?
Part and parcel of this process is understanding exactly where your client
hopes to go with the mediation. It is, after all, the client’s
case and the client’s money that is at issue. You will not be effective
as an advocate in mediation if you do not have a thorough grasp of your
client’s goals and desires. To the greatest extent possible, you
must work to be on the same page.
It is important to outline for the client, as part of the lead
up to the mediation, the critical issues in the case. Spend time
highlighting the strengths and weaknesses of your case and the
strengths and weaknesses of the opposing party’s case.
Anticipate, to the greatest extent possible, the arguments that
the other side is likely to make. Why is this so important for
a mediation? First, a fully informed client can make more rational
decisions about settlement. Second, the client is likely to hear
many of the same points from the mediator during the mediation.
A client that can convince the mediator that it has considered
all important facets of the case is more likely to convince a
mediator that its position is serious and reasoned, as opposed
to mere posturing. Often this gets translated back to the opposing
party through the mediator.
Preparing Effective Mediation Materials
As a general rule, a good mediator will give the parties some idea of what
kind of mediation statement and materials they would like. At a minimum,
the mediator should be given copies of key pleadings that frame the issues
in the case, such as the Complaint, Answer, TRO or preliminary injunction
pleadings, dispositive motions, and similar pleadings that detail the
facts and issues. The mediator also should be given key pieces of evidence
that either support your position or undermine the opposing party’s
position. The goal is to provide the mediator with sufficient information
that he or she can objectively understand your client’s position.
This does not mean that more is necessarily better. Just as
is true of trial advocacy, effective mediation advocacy requires
the attorney to sort the wheat from the chaff and focus on the
information that truly matters. The mediation will not go far
if you or the mediator are lost in a sea of facts. It is far
better to give the mediator too little information, with the
possibility of supplementing at the mediation itself, than to
inundate the mediator with more information than they are likely
able to handle without an inordinate investment of time.
Of course, you should provide a mediator with a statement outlining
your client’s take on the dispute, including a reasonable
outline of the critical facts. The presentation should be an
advocacy piece, but it should have as much objectivity within
that advocacy as is possible. To the greatest extent possible,
you should anticipate what the opposing party believes its key
supporting facts are and explain why those facts are either not
supported by the evidence or are of less consequence than the
opposing party contends. Your discussion should not be such an
advocacy piece that it cannot acknowledge strengths in the opposing
party’s position. To be effective in mediation you must
be able to grapple with the risk that the opposing party has
points that may be made effectively if the matter goes to trial.
It is important to give the mediator some perspective on settlement
history. Have the parties discussed settlement at all? If so,
give the mediator some of the history and explain why, at least
from your client’s perspective, the settlement discussions
have not been fruitful. Many mediators request – some even
beg for – a realistic figure for settlement. In general,
I have not found that to be particularly productive. Some mediators
are too quick to use numbers provided by the parties as brackets
within which they attempt to bridge the gap. Again, the point
of mediation is not simply to work numbers. Rather, the point
should be to come up with a settlement that makes sense. I believe
this is better accomplished by not worrying about getting to
the numbers too quickly. (Having said that, it is critically
important that the attorney understand where the client wants
to go with the mediation. But revealing that to the mediator
will not necessarily result in an effective mediation and may
even be counter-productive.)
In preparing a mediation statement, do not ignore issues of
personality or emotion. Usually parties are able to conduct themselves
civilly and engage in a productive dialog. When they cannot,
or when you perceive a substantial risk that they cannot, the
mediator must know that so that he or she can tailor his or her
approach appropriately. Additionally, even when the parties can
engage in productive dialog, if you are aware of or perceive
possible obstacles to settlement that may not be apparent at
the surface, let the mediator know. The mediator can then investigate
the issue and surface it so that it can be dealt with.
Find out from your mediator if he or she is willing to speak
with you prior to the mediation. Occasionally mediators will
not do so, fearing that this is some sort of improper ex parte
communication. I reject that notion, as the essence of mediation
is ex parte communication. Talking with the mediator before the
mediation can be extremely productive. If you are able to speak
with the mediator in advance, encourage him or her to demonstrate
that they are listening to and hearing both parties’ positions.
Nothing can kill a mediation faster than a mediator who gives
the appearance of having reached a judgment too quickly. It destroys
the credibility of the mediator for at least one party to the
mediation, and that may be sufficient by itself to doom the mediation.
Advocacy During the Mediation Session
One of the great benefits of talking with the mediator before the mediation
session is that it gives you an opportunity to learn how the mediator
will conduct the mediation. Most mediators begin with a joint session
in which they discuss the mediation process itself and request the parties
to explain their positions. Some mediators prefer a very brief presentation,
while others prefer a long joint session. Of course, some mediators do
not conduct joint sessions at all. Knowing how the mediator will conduct
the mediation allows you to properly prepare for the presentation.
Of course, you should plan your remarks ahead of time. Decide
whether you or the client representative will take the lead,
and whether that will change depending upon the circumstances.
Remarks in a joint session should not be inflammatory or belligerent.
Firmness is fine, but most important of all is a clear explanation
of your client’s perspective on the dispute. Demonstrate
a willingness to listen – it is often important for the
opposing party to feel that it has been heard.
Generally, the discussion becomes more freewheeling when the
mediation breaks into private caucuses. Decide in advance whether
to play your hand close to the vest or lay your cards on the
table. As a general rule, if you desire settlement and believe
that settlement can be achieved, lay your cards on the table.
In doing so, the most you give up is a bit of free discovery.
On the other hand, if you can persuade the opposing party to
agree to acceptable settlement you will avoid the unnecessary
expense of going through discovery. In any event, the opposing
party likely will discover the same information in discovery.
Without giving such information, including legal arguments, you
are far less likely to achieve a settlement.
Closing the Deal
If you reach a settlement during mediation, do not leave the mediation
without signing at least a rudimentary agreement reflecting the basic
terms of the settlement. Getting the settlement in writing will help
protect against buyer’s remorse. Even though many courts have very
liberal policies towards enforcing settlements, a settlement reached
during mediation but not reduced to writing may not be enforceable due
to the confidentiality rules that apply to mediations. See, e.g.,
National Union Fire Ins. Co. v. Price, 78 P.3d 1138 (Colo. App. 2003).
Kevin Bridston is
a partner in Holland & Hart LLP's Construction and Real
Estate Litigation Group.
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