Chapter 4 Planting the Seeds

• Jurisdiction: United States

Chapter 4 Planting the Seeds

There is a tale of a man flying in a hot air balloon when he realizes he is lost. He reduces height and spots a woman down below. He lowers the balloon further and shouts,

"Excuse me, but can you help me? I promised a friend that I would meet him fifteen minutes ago, but I don't know where I am."

The woman replies, "Yes, you are in a hot air balloon, hovering about thirty feet above this field. You are between forty and forty-two degrees North latitude, and between fifty-eight and sixty degrees West longitude."

"You must be a lawyer," says the balloonist.

"I am," she replies. "How did you know?"

"Well," says the balloonist, "everything you have told me is technically correct, but I have no idea what to make of your information, and the fact is I am still lost."

The woman below responds, "You must be a client."

"I am, but how did you know?" replied the client.

"You don't know where you are, or where you are going. You have made a promise which you have no clue how to keep, and you expect me to solve your problem. The fact is you are in the very same position you were in before we met, but now it is somehow my fault."

So, you may ask, how do you as mediation counsel maximize the chance of not being blamed by your disgruntled client if things go south in your looming mediation? You follow the Basque creed of Professor Fortgang, and "show up." In this instance, showing up means doing everything reasonably possible to prepare yourself and your client for the mediation.

One of the benefits of mediation compared to getting to trial is a far speedier resolution, with resultant cost savings—to a degree. Part of preparing for a mediation is conducting at least some degree of fundamental discovery. Without it, you will not be able to make an intelligent decision of the pluses and minuses of your case. Typically, interrogatories and requests for production of documents need to be propounded and answered. A few weeks before the mediation, formally request that any prior discovery responses be updated. Basic depositions of important witnesses need to be taken, not just to glean information, but also to measure their credibility and performance "under fire." You may also engage in nonformal investigation, delving into what your opposing party's reputation or track record might be. You may find out that the claimant has filed a multiplicity of prior claims or suits. Or that he has a significant rap sheet. On the other side, you may find that the defendant has a history of claims or complaints against it, some of which may have resulted in damaging judgments or governmental sanctions. If you don't know your opposing counsel, look into his track record by asking other lawyers in his community. Whether in New York or Natalbany, it's not that big a world. Other lawyers will know him. Does he settle almost always, or does he "cross the Rubicon" if he needs to? These and other factors are crucial in advising your client about what Fisher, Ury, and Patton (see Getting to Yes) call your BATNA—your Best Alternative To a Negotiated Agreement. And at the risk of repetition, there exists only a range, not a precise number. Your party's own needs and issues are also factored into fashioning your pre-mediation BATNA range. Without such basic information, you become the lost balloonist drifting blindly into the wilderness.

Careful drafting and timely submission of confidential pre-mediation position papers is an important tool in educating your mediator and advocating your position. Let me vent a bit about some lawyers' habits.

I was truly amazed and dismayed while I served as a mediator to note that certain lawyers, no matter how serious the case, would never submit a position paper. In the case of defense lawyers, this might be excused by the growing (and disturbing) tendencies of some insurer clients to refuse to pay for the preparation of such submissions. Arguably, such a stance fails to do justice to the contractual obligation of an insurer to defend its insured. In actuality, a position paper can drastically streamline a mediation, ultimately saving that insurer substantial defense costs. This is the ultimate example of being "penny wise, pound foolish." In the case of the plaintiffs' lawyers, the failure to submit a position paper seems professionally inexcusable. Some plaintiffs' lawyers will simply copy the demand letter sent to the opposition and submit that as their position paper. While this beats nothing at all, it hardly serves the full purpose of a position paper, as it provides the mediator with no insight into the unique dynamics of the case and its parties. I mediated with a prominent and competent plaintiffs' attorney on many occasions, and his puzzling habit was to appear at the mediation with his paralegal, who would hand me a four-inch-thick binder containing accident reports, medical records, and other relevant information. In my view, this was a disservice to his client. Mediators are not typically speed-readers, and such voluminous eleventh-hour submissions are of little to no benefit.

Another plaintiffs' attorney who used me frequently as a mediator would qualify for the grand prize in creatively compensating for untimely submissions. The afternoon before the next day's mediation, he called me and apologized for being too busy to timely provide me with his pre-mediation materials...