Monthly Archives: May 2014

MEDIATION OVERVIEW

If you are facing mediation, it is a good idea to know what to expect in order to prepare well and maximize the efficiency and effectiveness of the process. Know these basics:

(1) The mediator facilitates a conversation, but is NOT a decision-maker. Your job is to persuade the other side, not the mediator. One way to prepare well is to write a mediation brief or letter. It is addressed to the mediator, but often shared with the other party. It lays out a very brief history. For Example, it could read like this:

[My former business partner and I met in 1998; bought a business together in 2004; decided to sell in 2013; and now are in conflict over terms of the agreement. A copy of the agreement is attached as Exhibit A. I believe clause 3 means X; the other party believes it means Y. A copy of my letter to her outlining my view is attached as Exhibit B; a copy of her letter in response is attached as Exhibit C. I believe my interpretation is correct because…..]

A good length for your letter is six (6) pages. You may want to include a section that says: [My goals are…..]. This helps you focus on the outcome you want — both in terms of dollars and non-monetary terms. More on that below.

(2) Mediation sometimes works because the parties themselves know…deep down…what is really bugging them, what really motivates them, and what is really at issue for the other side. Attorneys sometimes gloss over these things to only focus on dollars. Even in construction cases, and almost always in real estate and employment cases, other considerations play a significant role. BEFORE the mediation, ask yourself what matters to you, in addition to money. Consider placing your core concerns, goals and “wants” in the mediation brief. Still, even if it is emotionally laden, remain professional and courteous. Rude and inflammatory remarks, vindictive comments, and negative overlay are counter-productive. Sometimes examining the emotional content first, then editing it out of your final submission, helps diffuse the internal drama. It is hard for the brain to be both emotional and analytical simultaneously, so this is a useful exercise even for business disputes.

(3) Settlement demands can always come down, but it is very difficult to increase your settlement demand. Start with a number that you can support with your evidence, but do not expect to be able to leave the mediation, invest more attorney fees, expert costs, discovery costs, and then have the other side pay for all of that in increased offers. It almost NEVER works that way. The time to maximize your settlement recovery is before the attorney fees, expert fees, court costs, depositions and other litigation processes suck the wallets dry.

(4) There are generally two different mediation models. One is the “shuttle offers” approach where the mediator moves from your room to the other side’s room and conveys information and offers, and tests your own theories of the case with questions, evidence, and issues for you to consider.

The other is a combined approach more typical in employment and labor cases, where an ongoing relationship between the parties will require future cooperation, collaboration, and mutual understanding. Consider which approach would best fit your situation, and find out which model your mediator prefers. It is your process, and you have the right to insist upon a mediator and an approach that will maximize the effect. You are paying for it, one way or the other. You cannot force the other party to meet with you, but even that refusal gives you information.

If you are the party refusing to meet, consider the message that you are sending. As a litigator also, I often view this as a signal that the other side is afraid to meet my client, afraid to face me, and afraid to really negotiate hard. To me, that is a signal of weakness. If they cannot face us in mediation, how will they do so at trial?

(5) Secrecy and “hide the ball” are counter-productive. Mediation is a private and confidential process, although what is learned during mediation cannot be unlearned upon leaving the room. However, keeping your best arguments, evidence, and information secret just in case your mediation isn’t successful usually ensures that mediation will NOT be successful. A mediator cannot use ammunition that s/he is not provided. However, a benefit of mediation is that your personal conflict is not public and available openly to business competitors, regulators, former employees, etc. The privacy aspect of mediation is a major “plus” for most parties.

(6) Take your files and documents with you to the mediation so that you can refer to them if necessary. The other party may genuinely have questions that you could answer to your own advantage and benefit.

(7) Finally, consider having your expert, accountant, or other “go to” people available by phone during the mediation. This is not for your own benefit, but to answer questions or provide insight to the other party. GOOD LUCK. Mediation works in most of the cases, most of the time.