News
Alternative Dispute Resolution
Aug. 2, 2002
Striking an Accord
Dicta Column - By Steve Cerveris - Mediations often don't come naturally to trial lawyers. In fact, many of the litigation techniques taught in law schools can hamper mediations, preventing them from progressing to mutually satisfactory conclusions.
Dicta Column
By Steve Cerveris
Mediations often don't come naturally to trial lawyers. In fact, many of the litigation techniques taught in law schools can hamper mediations, preventing them from progressing to mutually satisfactory conclusions.
The following techniques will help keep mediations on track.
• Filing briefs. Don't provide briefs on the day of the mediation. Submitting a mediation brief when you arrive at the mediator's office suggests a lack of faith or interest in the mediation process. It also misses an excellent opportunity to educate the mediator and opposing counsel before the mediation begins about the merits of your case, thereby jump-starting the process and likely increasing your odds of a resolution.
You've heard it a thousand times for a good reason: Take the mediation seriously, and prepare thoroughly. Briefs should be presented several days before the mediation.
Exchanging briefs with opposing counsel before filing them is often a good idea. If they contain confidential information for the mediator, prepare an expurgated version for opposing counsel and inform the mediator of that fact.
• Drafting mediation briefs. Be persuasive, not combative, in your writing. Always keep your goals and audience in mind when preparing your briefs. Keep them as short as possible, and include the factual and legal issues in dispute and previous settlement discussions. Include clean, recognizable copies of significant exhibits, discovery responses, highlighted jury instructions and pivotal cases.
• Participate in a joint session in most cases. Most mediators were trained to bring everyone together at the outset of a mediation. Unlike what some lawyers think about how their client's will react to such a meeting, it is usually a good idea to have the parties address one another in a joint session.
The joint session is usually the only opportunity the feuding parties will have to talk to one another about the dispute outside the traditional litigation setting. With proper client preparation before the session by both counsel and the mediator, the psychological benefit of allowing the parties to have a discussion, even a difficult one, can be immeasurable. This rule always has exceptions, but good mediators will recognize those cases and likely agree that separate sessions are more productive in those rare situations.
• Don't engage in personal attacks. Try to refrain from personalizing the litigation or your relationship with opposing counsel or parties during the mediation. Personal attacks usually cause the mediation to end prematurely and often motivate your opponent to spend more time, money and effort in the litigation.
• Acknowledge the opposition whenever possible. Mediation involves showing the other side the strengths of your case. What better way to educate than to ensure that your audience listens attentively. Everyone loves to be acknowledged and receive validation.
As distasteful as it may sound, try acknowledging at least one thing about opposing counsel or his or her client at the outset. For example, try thanking opposing counsel and his or her client for attending the mediation, traveling from out of town, arranging the mediation, exchanging mediation briefs, cooperating with discovery requests or schedules, or allowing you to share your version of the facts and law. Starting the conversation in a positive manner enhances the likelihood of your opponent listening to the substantive points you are about to discuss.
• Don't make outrageous opening demands or offers. Seven-figure or nuisance-value demands only send the message that you don't think much of the other side's case and are not the best methods to get the settlement ball rolling at the start of a mediation. Once you stop trying to punish the other side for prosecuting or defending their cases, you will be surprised at the progress you can make in your negotiations.
Save the punishment for trial if the case doesn't settle, but in the early stages of mediation, you increase your odds of settlement by starting in a range you think will keep your opponent interested. Although old habits die hard and many lawyers are accustomed to outrageous opening offers and demands, such tactics will only backfire.
• Make concessions. Conventional wisdom suggests concessions are a sign of weakness and only create an opportunity for your opponent to take advantage of the situation. But a concession can become your greatest ally during settlement negotiations. Admitting the obvious strengths in your opponent's case does little to weaken your position and usually buys you respect and goodwill.
Concessions also demonstrate that you are listening, realistic and serious about engaging in good-faith settlement discussions. They also create a certain amount of optimism in your opponent who will, you hope, respond in kind.
Some appropriate concessions are obvious statute-of-limitations problems, the applicability of a case or statute to your facts, particular party's making a good witness, a certain venue's having been traditionally more favorable to one side or the other, or an assessment of realistic litigation costs.
The psychological impact of concessions can be tremendous in motivating otherwise recalcitrant parties or attorneys. Provided the concession is obvious, you have nothing to lose and a lot to gain by making them.
• Don't give the mediator your bottom line until the end. Some lawyers have little patience for the bargaining process. By stating something like, "I don't care how you get them there, but I've got only $15,000 and not a penny more," lawyers reveal their bottom line too early and relinquish this responsibility to the mediator.
Bottom lines are inevitable, but the longer they are avoided, the better the chance of settlement. If they come too soon, they can derail a mediation before it starts. They create distrust and pessimism about the process, and they make everyone's job more difficult if presented prematurely.
Prolonged negotiations create a momentum for continued negotiation, which makes it hard for each side to walk away. It's not magic. It's human nature, and it works.
If later in the mediation you do draw an appropriate "line in the sand," be prepared for attempts by the mediator to try to move that line by using a number of excruciating impasse-breaking techniques. Your choices are simple: Either you move or you don't. All great negotiations must come to an end, and you need not be apologetic for your ultimate decision, nor should the mediator be apologetic for doing his or her job.
• Don't give up on the process. Some cases should be tried before a judge or jury, but statistically only a few litigated matters ever get that far. Avoid the temptation to give up on settlement discussions and move irreversibly into trial preparation mode after a seemingly unsuccessful mediation session.
Give the mediator an opportunity to keep lines of communication open after an initial mediation session. When egos and emotions get in the way, it's easy to abandon the settlement process. Try not to lose sight of a realistic risk assessment of your client's case. Consider subsequent mediation sessions after additional discovery and investigation. Don't be reluctant to contact the mediator directly to discuss strategies to restart negotiations.
• Bring a long-form settlement agreement to the mediation, and be prepared to stay awhile. Mediations often become endurance tests with the mediator attempting to wear down the feuding parties, hoping they will settle, sometimes out of sheer exhaustion. After a lengthy mediation, especially those that conclude late at night, it is tempting to call it a day and put off drafting an agreement until the next day. The risk, however, is that parties or the lawyers may change their minds or try to renegotiate material terms, having had more time to ruminate on the "deal."
One effective way to deal with the psychological and physical fatigue after a marathon mediation session is to bring a copy of a previously prepared settlement/release agreement to the mediation. It is much easier to modify an agreement than prepare a new one when you are exhausted. Bring a copy on a diskette or CD-ROM, or prepare an original agreement, and fill in the blanks. Even a short-form stipulation for settlement executed at the conclusion of a mediation is better than nothing, but hammering out a long-form settlement agreement and/or mutual release form is preferable and always worth the additional time spent.
Undoubtedly, some seasoned litigators may have tremendous skepticism about these mediation techniques. It is often that very skepticism, however, that causes settlement discussions to break down.
In your next mediation, try ignoring conventional litigation wisdom, and attempt to implement one or more of these suggestions. Remember, if it doesn't work, there are always a courtroom and a jury waiting.
Steve Cerveris, a full-time Los Angeles mediator, is director of the Southern California Mediation Association. He serves on the Los Angeles County Superior Court's alternate dispute resolution committee and quality assurance and operations subcommittees.
By Steve Cerveris
Mediations often don't come naturally to trial lawyers. In fact, many of the litigation techniques taught in law schools can hamper mediations, preventing them from progressing to mutually satisfactory conclusions.
The following techniques will help keep mediations on track.
• Filing briefs. Don't provide briefs on the day of the mediation. Submitting a mediation brief when you arrive at the mediator's office suggests a lack of faith or interest in the mediation process. It also misses an excellent opportunity to educate the mediator and opposing counsel before the mediation begins about the merits of your case, thereby jump-starting the process and likely increasing your odds of a resolution.
You've heard it a thousand times for a good reason: Take the mediation seriously, and prepare thoroughly. Briefs should be presented several days before the mediation.
Exchanging briefs with opposing counsel before filing them is often a good idea. If they contain confidential information for the mediator, prepare an expurgated version for opposing counsel and inform the mediator of that fact.
• Drafting mediation briefs. Be persuasive, not combative, in your writing. Always keep your goals and audience in mind when preparing your briefs. Keep them as short as possible, and include the factual and legal issues in dispute and previous settlement discussions. Include clean, recognizable copies of significant exhibits, discovery responses, highlighted jury instructions and pivotal cases.
• Participate in a joint session in most cases. Most mediators were trained to bring everyone together at the outset of a mediation. Unlike what some lawyers think about how their client's will react to such a meeting, it is usually a good idea to have the parties address one another in a joint session.
The joint session is usually the only opportunity the feuding parties will have to talk to one another about the dispute outside the traditional litigation setting. With proper client preparation before the session by both counsel and the mediator, the psychological benefit of allowing the parties to have a discussion, even a difficult one, can be immeasurable. This rule always has exceptions, but good mediators will recognize those cases and likely agree that separate sessions are more productive in those rare situations.
• Don't engage in personal attacks. Try to refrain from personalizing the litigation or your relationship with opposing counsel or parties during the mediation. Personal attacks usually cause the mediation to end prematurely and often motivate your opponent to spend more time, money and effort in the litigation.
• Acknowledge the opposition whenever possible. Mediation involves showing the other side the strengths of your case. What better way to educate than to ensure that your audience listens attentively. Everyone loves to be acknowledged and receive validation.
As distasteful as it may sound, try acknowledging at least one thing about opposing counsel or his or her client at the outset. For example, try thanking opposing counsel and his or her client for attending the mediation, traveling from out of town, arranging the mediation, exchanging mediation briefs, cooperating with discovery requests or schedules, or allowing you to share your version of the facts and law. Starting the conversation in a positive manner enhances the likelihood of your opponent listening to the substantive points you are about to discuss.
• Don't make outrageous opening demands or offers. Seven-figure or nuisance-value demands only send the message that you don't think much of the other side's case and are not the best methods to get the settlement ball rolling at the start of a mediation. Once you stop trying to punish the other side for prosecuting or defending their cases, you will be surprised at the progress you can make in your negotiations.
Save the punishment for trial if the case doesn't settle, but in the early stages of mediation, you increase your odds of settlement by starting in a range you think will keep your opponent interested. Although old habits die hard and many lawyers are accustomed to outrageous opening offers and demands, such tactics will only backfire.
• Make concessions. Conventional wisdom suggests concessions are a sign of weakness and only create an opportunity for your opponent to take advantage of the situation. But a concession can become your greatest ally during settlement negotiations. Admitting the obvious strengths in your opponent's case does little to weaken your position and usually buys you respect and goodwill.
Concessions also demonstrate that you are listening, realistic and serious about engaging in good-faith settlement discussions. They also create a certain amount of optimism in your opponent who will, you hope, respond in kind.
Some appropriate concessions are obvious statute-of-limitations problems, the applicability of a case or statute to your facts, particular party's making a good witness, a certain venue's having been traditionally more favorable to one side or the other, or an assessment of realistic litigation costs.
The psychological impact of concessions can be tremendous in motivating otherwise recalcitrant parties or attorneys. Provided the concession is obvious, you have nothing to lose and a lot to gain by making them.
• Don't give the mediator your bottom line until the end. Some lawyers have little patience for the bargaining process. By stating something like, "I don't care how you get them there, but I've got only $15,000 and not a penny more," lawyers reveal their bottom line too early and relinquish this responsibility to the mediator.
Bottom lines are inevitable, but the longer they are avoided, the better the chance of settlement. If they come too soon, they can derail a mediation before it starts. They create distrust and pessimism about the process, and they make everyone's job more difficult if presented prematurely.
Prolonged negotiations create a momentum for continued negotiation, which makes it hard for each side to walk away. It's not magic. It's human nature, and it works.
If later in the mediation you do draw an appropriate "line in the sand," be prepared for attempts by the mediator to try to move that line by using a number of excruciating impasse-breaking techniques. Your choices are simple: Either you move or you don't. All great negotiations must come to an end, and you need not be apologetic for your ultimate decision, nor should the mediator be apologetic for doing his or her job.
• Don't give up on the process. Some cases should be tried before a judge or jury, but statistically only a few litigated matters ever get that far. Avoid the temptation to give up on settlement discussions and move irreversibly into trial preparation mode after a seemingly unsuccessful mediation session.
Give the mediator an opportunity to keep lines of communication open after an initial mediation session. When egos and emotions get in the way, it's easy to abandon the settlement process. Try not to lose sight of a realistic risk assessment of your client's case. Consider subsequent mediation sessions after additional discovery and investigation. Don't be reluctant to contact the mediator directly to discuss strategies to restart negotiations.
• Bring a long-form settlement agreement to the mediation, and be prepared to stay awhile. Mediations often become endurance tests with the mediator attempting to wear down the feuding parties, hoping they will settle, sometimes out of sheer exhaustion. After a lengthy mediation, especially those that conclude late at night, it is tempting to call it a day and put off drafting an agreement until the next day. The risk, however, is that parties or the lawyers may change their minds or try to renegotiate material terms, having had more time to ruminate on the "deal."
One effective way to deal with the psychological and physical fatigue after a marathon mediation session is to bring a copy of a previously prepared settlement/release agreement to the mediation. It is much easier to modify an agreement than prepare a new one when you are exhausted. Bring a copy on a diskette or CD-ROM, or prepare an original agreement, and fill in the blanks. Even a short-form stipulation for settlement executed at the conclusion of a mediation is better than nothing, but hammering out a long-form settlement agreement and/or mutual release form is preferable and always worth the additional time spent.
Undoubtedly, some seasoned litigators may have tremendous skepticism about these mediation techniques. It is often that very skepticism, however, that causes settlement discussions to break down.
In your next mediation, try ignoring conventional litigation wisdom, and attempt to implement one or more of these suggestions. Remember, if it doesn't work, there are always a courtroom and a jury waiting.
Steve Cerveris, a full-time Los Angeles mediator, is director of the Southern California Mediation Association. He serves on the Los Angeles County Superior Court's alternate dispute resolution committee and quality assurance and operations subcommittees.
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