Thorough preparation is essential. The mediation may be the best and last opportunity for negotiating an off ramp that best maximizes the potential for achieving the client’s critical interests. In preparing for the mediation, counsel will consider many of the following issues and more:
- Know the case. A robust internal case evaluation of potential strengths and weaknesses is critically important. Well before the mediation begins, candidly discuss the strengths and weaknesses of the client’s case (i.e., what is the likelihood of success at trial or arbitration; is the law favorable or does a successful outcome depend on creating new or modified law; is there problematic information that will almost certainly be disclosed as the result of further discovery; does the case have jury appeal in the applicable venue; what have similar cases settled for; etc.). Quite frankly, sophisticated trial counsel and clients do not need a mediator to raise the strengths and weaknesses of the case they have already considered. What the parties want is a mediator with extensive litigation experience who will raise the costs, risks and benefits that might not yet have been explored.
- Determine if the opposing party is ready for mediation. Because the desire for an early mediation is becoming more common in achieving a client’s true interests, preparation will often include subtle steps to determine if the opposing party believes it is prepared. If opposing counsel does not have access to the facts and documents necessary to permit a reasonable comfort level at the time of mediation, as part of the preparation process mediation savvy trial counsel will seriously consider voluntarily providing opposing counsel, within reason, the information requested for a productive mediation. If opposing counsel will readily be able to obtain that information through the discovery process, there is typically little benefit that will accrue by not voluntarily and selectively providing a certain amount of the requested information. If a client’s interest is served by the successful termination of the dispute at the earliest practicable date or minimizing the costs and delay of litigation or publicity, needlessly withholding readily discoverable and relevant evidence that stands in the way of the client’s objectives may not be particularly strategic. Part of the due diligence a mediator often conducts is to ascertain whether the parties believe they are truly ready to mediate. If, for example, the failure to engage in the voluntary and reasonable exchange of information will be an impediment to a successful mediation, the experienced mediator will endeavor to address that impediment. There are multiple nuanced, creative and mutually satisfactory solutions that can be explored. The experienced mediator, if requested, can be of invaluable assistance in resolving these and other competing interests in a creative and strategic way during the pre-mediation process.
- Advise the client what to expect during the life of the mediation, the important milestones that will occur, and the strengths and weaknesses of the opposing party’s case.
- Assess the client’s risk appetite and interests. While all clients want to “win,” for many clients, particularly business clients, reducing risk, enhancing predictability and other factors can also be very important. The full range of the client’s risks and interests should be canvassed and discussed.
- Ascertain the opposing party’s interests. In addition to considering your interests in resolving the litigation, give careful consideration to the potential interests of the opposing party. Every party may have multiple “interests” in resolving a dispute and one of the most creative ways to fashion a mutually acceptable resolution is to identify and address those interests (more on this in the "You Will Learn More by Listening Than by Talking" tip). While most mediations clearly focus on “the money,” creativity is still a key component of successful mediations in addressing the disparate interests of the parties.
- Communicate with the mediator. Effective attorney preparation also includes having the appropriate and necessary confidential communications with the mediator well in advance of the day of the mediation. The mediator’s preparation process should involve the opportunity for confidential communications concerning the particular needs of the attorneys and their clients.
- Identify the client’s BATNA (best alternative to a negotiated agreement). What will occur, and at what cost and risk, if a resolution is not achieved? At what level is the alternative to a negotiated agreement better than accepting terms that are unsatisfactory? Although the parties want to maintain flexibility during the mediation, come to a preliminary understanding with the client on the walk away points and issues. A bad resolution is not in any client’s best interests and certainly not the objective of any experienced mediator. Do not rely upon the mediator to recognize and counsel against a bad resolution. That is exclusively the province of the well prepared attorney and client.
- Select the correct client representatives to be present at the mediation. If the right individuals aren’t present at the mediation, the mediation may well fail in reaching the objective. Part of the mediator’s due diligence process requires an evaluation of whether all the correct individuals, including those with true settlement authority, will personally appear at the mediation. In certain cases where emotions are raw and still volatile, it may be prudent not to have the principal antagonist present (or present only during the caucus). In other cases the spouse or significant other of a party may provide the support necessary to allow that party to make a difficult decision. Carefully consider these and other related issues in preparing for the mediation. If there are concerns about the party representative(s) selected (or not selected) by opposing counsel, certainly do not hesitate to make those concerns known to the mediator.