Most business people have at least a passing familiarity with the mediation process. And most counsel agree that it is a low risk process that more often than not will lead to positive outcomes, and oftentimes, resolution of disputes. Even if the parties to the dispute are paying a retired judge who charges $600 per hour for a day or two of his or her time, the process is vastly cheaper (and quicker) than protracted civil litigation or even arbitration, if that is an option. Moreover, mediation participants often appreciate that mediation is privileged and confidential so that the relevant information at issue (e.g., financial matters, proprietary documents, or sensitive personal information) are protected and can remain more easily shielded from public disclosure – the presumed outcome of “public record” litigation in court.
To most effectively pursue mediation if it is appropriate for a client, a savvy attorney will guide their client through some basic threshold issues that will put the client in the best posture to strike the best deal possible. These include:
How extensively to brief facts and legal issues. Certainly, in most mediations briefing for the benefit of the mediation is sought or required prior to the mediation conference. An effective brief should clearly and consisely present facts and law involved in case. However, a primary focus should be on damages. A skilled attorney understands that often in mediation, complex legal arguments won’t prompt a settlement and it is often better, from a tactical standpoint, to hold lengthy legal arguments in reserve for adjudication in litigation if mediation does not settle the dispute. Suggestions in the mediation brief (read by the mediator in advance of the mediation conference) is helpful in educating the mediator about creative ideas for a possible resolution. Laying that groundwork will likely prove fruitful in achieving a business-like deal.
Whether or not to exchange the mediation briefs. A skilled attorney will know that more often that not, an agreement by the parties to exchange mediation briefs will positively impact the chances of a favorable settlement. An important component of the exchange is allowing both the mediator and opposing side enough time in advance of the mediation to review and absorb the respective arguments and settlement positions of the parties. That will also save time and money by allowing the mediation to shift into high gear about meaningful negotiations once the mediation commences.
An experienced attorney will also, once the mediator is selected by the parties, insist on a pre-mediation conference call with the parties’ counsel with the mediator. Doing so allow the mediator to establish appropriate ground rules, particularly regarding the timing of an exchange of the parties’ documents and briefs. That will allow the parties time to evaluate the opposing party’s position and perhaps, if warranted, reevaluate their own assumptions. This goes to the heart of the major differences between adversarial litigation and voluntary participation of the deal-making process of mediation.
Insist on the personal attendance of the parties’ representatives who have authority to make a deal. The best laid plans for establishing mediation ground rules will likely come to naught unless key decision-makers are personally present at the mediation. While some parties may request permission to attend by telephone (particularly, if travel is burdensome) that should be avoided, if possible. Experienced attorneys will insist at the pre-mediation conference call with counsel that the mediator require that all parties be present at the mediation. Mediation quickly evolves and mutates during the process and it is virtually impossible to fully convey via the telephone to the party decision-maker critical information, likely dooming the effort to resolve the dispute at mediation.
Finally, the parties to a dispute have a unique opportunity for creativity. They should be encouraged by counsel to search for solutions that may go beyond purely monetary issues. Resolving conflict through buyout scenarios or negotiation of new, and even unrelated, business agreements can possibly lead to win-win outcomes for the parties that would be impossible following trial or arbitration.