SC Lawyer, November 2007, #4. A Mediator's Viewpoint: Do's And Don'ts For Advocates.

• Author: By Robert W. Hassold Jr.

South Carolina Lawyer

2007.

SC Lawyer, November 2007, #4.

A Mediator's Viewpoint: Do's And Don'ts For Advocates

South Carolina LawyerNovember 2007A Mediator's Viewpoint: Do's And Don'ts For AdvocatesBy Robert W. Hassold Jr.Although the public and your clients may refer to some of you as trial lawyers, advocates or litigators, in truth, you often feel like "fireman" is a more appropriate moniker given the pace of a litigation practice in today's world.

Mediation affords you and your client an opportunity to resolve a case, but it is still one more deadline to meet in an already cramped schedule. However, since mediation is an extension of the negotiation process, the better prepared you are, the better the potential result for your client.

After mediating approximately 1,400 cases in a statewide mediation practice, I want to pass along some observations and tips to help you and your clients maximize the opportunity afforded by mediation.

Pre-Mediation Considerations

DO "set the table" for meaningful negotiations:

Understand your case backward and forward. If you don't, it will become readily apparent to your client and others at the mediation.

Meet with your client prior to the mediation and:

· Take time to understand your client's interests (i.e., their hopes, goals, fears and concerns) and explore their view of the opposing party's interests. Ideally, any resolution reached at mediation should attempt to meet the parties' interests. If you don't know what they are, it will be difficult for you to fashion a resolution that is satisfactory to your client.

· Find out who "owns" the dispute within your client's family or organization - it may be someone behind the scene whose approval, input or presence will be required at the mediation. Their absence or lack of input will stifle negotiations.

· Explore all alternatives and options to resolve the dispute. Are there any options other than money or attractive alternatives using assets or situations outside those involved in the present dispute?

· Decide who will attend the mediation - you may want to bring a key witness or expert, particularly in disputes where little if any discovery has taken place.

· Make sure that one of the individuals who will attend the mediation has the authority to settle the dispute. If not, make sure opposing counsel and the mediator consent to the situation. In the latter case, make sure that the decision-maker can at least participate by phone and give that person the heads up that the mediator will likely want to speak directly to him or her in your presence.

· Be realistic in your evaluation of the probable outcome of your client's case at trial or arbitration. Make sure that your client understands that the trial's outcome will be decided by a judge, jury or arbitrator after taking into account all the facts, law and arguments presented by all the parties. Thus, the proper measuring stick for any negotiation is what a judge, jury or arbitrator is likely to decide, which may be different from the outcome or goals your client desires.

· Inform your client that mediation is a fluid process and that you may need to re-evaluate your case in light of what takes place at the mediation.

· Although the mediator will review the mediation process with your client, you should also review the process with them to: (1) reduce their anxieties and fears, and (2) help prepare them to participate at the mediation in a meaningful manner.

Provide opposing counsel information (documents, pictures, affidavits, highlighted deposition transcripts, etc.) well ahead of the mediation in order for them to better understand, evaluate and have authority to settle the case. Remember that some parties have to have the case reviewed by a committee, board or other executive process well prior to the mediation. Receipt of last minute information or documentation may impede the resolution of the dispute.

Provide the mediator, and if you think appropriate, opposing counsel, a brief pre-mediation statement setting forth: (a) the relevant facts, (b) the issues, (c) the parties' interests, (d) options available to resolve the dispute and (e) the status of settlement negotiations.

It is also helpful to speak directly to the mediator a few days before the mediation to make sure that the table has been set for meaningful negotiations to take place.

Give the mediator a heads up to any unusual dynamics or personalities that might impact the negotiations. The parties' relationship may be so acrimonious that the mediator may opt to forego a joint opening session and move straight into caucus sessions in order to shift the parties' focus from retaliation towards resolution.

DON'T make the following assumptions:

That "off the record" settlement discussions with opposing counsel will remain off the record. These discussions typically are brought up in the course of mediation. Just as it is difficult to un-ring a bell, it is equally hard to forget what opposing counsel believed at one point to be a fair resolution of the case. Thus, plaintiff's opening demand of $1 million and defense counsel's opening offer of $5,000 are met with vitriolic responses when prior to the mediation all counsel believed a settlement in the $100,000 range was in order.

That opposing counsel and their client will be able to properly evaluate the dispute without the same information you have in your possession.

That just because opposing counsel or their client are "good people," that they are going to evaluate the dispute the same way you are.

That the mediation session will last a predetermined amount of time.

Mediation Considerations

DO the following:

Prepare a short outline of your key points and analysis of the damages. Present this document to everyone at the mediation table before giving your presentation. A mediator is always looking for a good source document to frame the negotiations around.

If you are representing a plaintiff, you should be able to clearly articulate your client's damages. Again, it is very helpful to a mediator to have a document analyzing the plaintiff's damages from the plaintiff's or defendant's viewpoint.

If there is key case law or documents or testimony on point, have highlighted copies available for everyone. Remember the old saying that, "seeing is believing." Don't underestimate the power of a visual presentation and the power of a party holding in their own hands written documentation that undercuts their position.

If you are trying to get money for your client, you and your client need to be civil and courteous. Very few people are willing to pay money to someone who has insulted them.

Likewise, if your goal is to have your client not pay money, or as little as possible, you and your client still need be civil and courteous so that your defenses and evaluation of the case appear reasonable.

The opening session is a time to inform the other side of the reasonableness of your position and probable outcome of the dispute.

The caucus session is a time to realistically evaluate your case with your client in light of information, new and old, discussed at the mediation.

Get the mediator's feed back about the opposing party's mediation style, i.e. bottom line/quick death march (leapers) vs. cautious/slow death march (creepers). Generally, the creepers will dictate the pace, so you leapers need to be patient!

Have key documents and witnesses at the mediation (or key witnesses at least available by speaker phone).

Be honest with the mediator - a mediator can generally tell when you are not, so go ahead and maintain your credibility.

Bounce negotiation strategy off the mediator.

If consent has been provided to allow your decision-maker to attend by phone, make sure that you can get hold of them at all times during the mediation - invariably, key decisions or negotiations take place during the lunch hour and after 5 p.m. Therefore, you should have that person's e-mail address, work, cell and home phone numbers.

Your offers, demands and messages should signal that you are there to resolve the dispute.

Commit to work hard and stay until resolution occurs or until the mediator believes there is no hope of resolving the dispute that day.

DON'T think:

That you can "wing it" and appear professional to your client and opposing counsel and their client.

That you can leave key documents, pictures, depositions, etc. back at your office. Inevitably, the documents you left at the office become important.

That opposing counsel and their client should see it your way after an hour. I recently had a defendant's attorney ask me, in all seriousness, in the first caucus session, if the plaintiff had come to their senses and agreed to drop the case. That defendant ended up paying a substantial amount of money to settle the case. To paraphrase an old biblical passage, "before you take the spec out of your brother's eye, you may need to take the plank out of your own eye!"

That your client will be happy with the outcome if you have given them false hopes or unrealistic expectations prior to the mediation.

That it is hopeless after three rounds - give the mediator a chance.

And finally ...

Don't quit. Mediation is not for quitters! As noted above, it is important to understand that mediation is a process that takes time and commitment by all involved. Although the mediation process affords an opportunity for parties to reach an amicable resolution, more times than not, resolution comes about through patience, perseverance and a strong work ethic from all involved. Good luck!

Rob Hassold has a full-time mediation practice and can be reached at robhassold@msn.com.