By Stephen A. Hochman, Esq.
I. The Pre-Mediation Stage
A. Subjects to Discuss at a Pre-Mediation Conference with the Mediator (Either in a Joint Conference or Privately)
1. Scheduling the mediation so as to allow sufficient time for the process to work
2. Asking the mediator to get your adversary's ultimate decision maker to be present at the mediation (including their insurance carrier, if applicable)
a. If the ultimate decision maker is unavailable, suggest that he or she be available by phone (including cell phone)
b. Suggest that the mediator get a guarantee from your adversary that the ultimate decision maker will meet with the mediator in a private caucus at a future date if needed to break impasse
3. The desirability of having the parties exchange relevant documents or information prior to the mediation
4. Other information you should tell, or questions you should ask, the mediator
B. Contents of the Pre-Mediation Submission
1. What should it include and should you share it with your adversary?
2. What confidential information should you share (or not share) with the mediator?
C. Who Should You Bring to the Mediation?
1. The representatives of your client who were involved at the deal level
2. The higher level decision makers
3. Key witnesses
5. Your client's insurance carrier, if applicable
D. How Should You Prepare Your Client for the Mediation?
1. Explain the process, the extent of confidentiality, the role of the mediator and the fact that the opposing party as well as the mediator is the audience.
2. Find out your client's needs and interests and the desirability of giving or getting non-monetary benefits.
3. Discuss of the strengths and weaknesses of your client's case.
4. Adjust your client's expectations as to its BATNA and WATNA as well as its MYLATA in the context of its business alternatives as well as its litigation alternatives.
5. Discuss settlement options (e.g., monetary and non-monetary consideration, future business, confidentiality, non-disparagement agreements, etc.).
6. Plan the negotiation strategy.
a. Explain the need for the negotiation dance.
b. Explain the need for patience.
7. Explain the role of your client (i) in the joint session and (ii) in the caucuses:
a. In the joint session, consider having your client explain his or her suffering and feelings (but avoiding accusatory statements or hot buttons), and acknowledge adversary's sufferings or feelings.
b. In the caucuses, consider good cop, bad cop strategy and what not to tell the mediator.
c. Advise your client as to when to speak, and when not to speak, and ways you and your client can privately signal each other.
d. Advise your client as to how to respond to the adversary's accusations or provocations.
8. Prepare your client for likely questions the mediator may ask.
E. Consider Requesting Pre-Mediation Meetings, Such As:
1. a four-way meeting (with clients) or a two-way meeting (lawyers only), without the mediator:
a. to explore settlement and avoid the cost of mediation;
b. to decide on the ground rules for the mediation.
2. a four-way (with clients) or two-way (lawyers only) meeting with the mediator
a. to agree on the mediation process;
b. to define and narrow the issues;
c. to discuss sensitive party relationship issues.
3. a pre-mediation caucus with the mediator, either with or without your clients.
F. Consider Bringing a Draft Settlement Agreement to the Mediation.
II. The Joint Session (Should It Ever Be Avoided?)
A. Your Opening Statement
1. Should you use the positional bargaining approach - e.g., "We believe we will win in litigation because...."?
2. Should you use the fair settlement approach - e.g., "We are here because we want to settle on terms that are fair to (or better than the alternative for) both parties"?
3. Should you use the problem solving approach?
a. Explain your desire to accommodate your adversary's needs.
b. Explain the impediments to accommodate those needs, for example:
(x) the strength of your case and your duty not to settle if your litigation alternative is better;
(y) practical constraints (e.g., financial inability).
c. Invite your adversary to provide information or ways to overcome the impediment (e.g., what are the weaknesses in my case that I may have missed, or how can we give you benefits other than money).
4. Should you propose focusing on business deal alternatives in the joint session?
5. To what extent should you avoid telling the other side its weaknesses and use the mediator to tell them their bad news?
6. Avoid hyperbole, overstatement, strident tone and accusatory or insulting statements (e.g., "It's a lie", "Your position is absurd", "Your case stinks and is worth only nuisance value").
7. Show empathy to the other side if appropriate.
8. Don't discuss money or other types of consideration yet.
B. How Should You Evaluate and Respond to Your Adversary's Opening Statement?
1. Listen for clues as to their needs and interests.
2. Be prepared to respond if your adversary communicates threats, insults or a positional bargaining approach.
C. Consider Communications After the Opening Statements
1. to get clarification or information from your adversary (as opposed to arguing);
2. to explore possible business deal alternatives to litigation.
III. The Initial Caucus
A. Consider Asking the Mediator For His or Her Views as to the Litigation Alternative.
B. Should You Negotiate with the Mediator?
C. To What Extent Should You Disclose the Weaknesses in Your Case to the Mediator?
D. Consider the Extent to Which You Should Hold Back Some Strengths or Arguments For Later.
E. Give the Mediator Ammunition to Show the Other Side Its Weaknesses.
F. Coach the Mediator Not to Permit the Other Side to Discuss Money Before the Mediator Does Risk Analysis with Them
G. Don't Make or Respond to "Out-Of-The-Ballpark" Offers or Demands.
H. Coach the Mediator to Discourage the Other Side to Avoid Making "Out-Of-The-Ballpark" Offers or Demands.
I. Consider Using the Mediator:
1. to convey difficult messages to your adversary;
2. to get information from your adversary;
3. to test the viability of settlement alternatives;
4. to orchestrate the negotiation;
5. to help get your client to be realistic about his or her litigation alternative.
J. Coach the Mediator to Let the Other Side Vent and Have Its Feelings Validated so It can Focus on Tomorrow Rather Than Yesterday.
IV. Subsequent Caucuses
A. Consider When and How It's Better to Let the Mediator be the Author of Your Proposals to Avoid Reactive Devaluation.
B. Make a Reasonable Opening Offer or Response Through the Mediator:
1. Leave room for movement;
2. Consider offering a range rather than an absolute number.
C. Look for Clues in what the Mediator Tells You About the Other Side.
D. Consider Holding Back Some Strengths and Some Proposals Until the Final Caucus.
E. Don't Accept the Other Side's Proposals Too Quickly.
F. Support Your Proposals with Reasons.
G. Coach the Mediator on How to Let (A) the Plaintiff Feel It is Getting the Last Available Dollar From the Defendant or (B) the Defendant Feel It is Not Overpaying (As The Case May Be)
H. Should You Tell the Mediator Your Real "Bottom Line" (or "Last Dollar")?
I. Should You Say to the Mediator "This is the Most We Will Pay Unless You Can Show Me I'm Missing Something?"
J. Explain to the Mediator the Basis of Your Rational Costs/Benefit Analysis.
V. Breaking Impasse and Closing the Deal:
A. Consider Offering any Available Non-Monetary Concessions at This Time (e.g., Apology, Letter of Recommendation or Amended U-5).
B. Consider Suggesting that the Mediator Propose Conditional Offers.
C. Consider Orchestrating a Mediator's Proposal.
D. Don't Accept the Mediator's Proposal Too Quickly.
E. Consider Baseball or High/Low Arbitration to Close the Gap.
F. Consider Finalizing a Potentially Controversial Settlement Agreement Even Though the Dollar Amount is Still Open:
1. It commits both sides to the process;
2. It creates momentum -- how can we let it fail now?
G. Consider Whether the Process Should Keep Going or Take a Breather.
H. Consider Whether the Lawyers or the Parties Should Confer Separately with Each Other or with the Mediator.
I. Consider the Desirability of Imposing a Deadline (Even if Flexible).
VI. Conclusion- Mediation is an adversarial as well as a collaborative process.