TLA Nutshell – Strategies for an Effective Mediation
Managing the Common Challenges that Arise
Benson Percival Brown LLP
September 16, 2014
Bad Data, Bad Criterion
- Prepare fully for the mediation so that the facts that you present are accurate, and you are in a position to correct any factual errors presented by opposing litigants.
- Read the briefs so that you can identify potential factual errors as early as possible. Where factual errors are identified, communicate with opposing litigants by telephone or letter so that they have an opportunity to check disputed facts before the mediation begins.
- Have your entire file with you at the mediation so that you can find and review a document that will resolve a disputed fact. Also bring a computer so that you can connect to the internet and look something up.
- Surprises rarely make a case easier to resolve. You empower all parties to meaningfully manage the issues in dispute if you provide updated information where appropriate.
- Employ the “show me, don’t tell me” principle when discussing the criterion by which you value your position.
Lack of Traction
- Where there is more than one party on one side of the dispute discuss the “strategic plan” in advance. Where possible, for example, issues between defendants should be agreed upon before the mediation begins to ensure that you are in a position to move the matter forward during the mediation.
- Avoid getting drawn into a relative or comparative position analysis. For example, the percentage that your client pays is not relevant if the dollar amount satisfies their interests.
- Evaluate options that represent a step down from full resolution of all issues.
Two Ships Passing in the Night
- The first credible offer typically anchors the mediation.
- Offers that are not capable of being accepted, or that are so far outside of the realm of possible do not advance the negotiation.
- A party typically does not begin to reveal their true position until settlement appears possible.
- Your offers should be messaged to convince the other side that you are moving into settlement territory.
- Moderate your language (at least with the mediator) to avoid losing a deal.
Client Management During the Negotiation
- The best way to manage client expectations during the negotiation is to ensure that you have discussed the negotiation before the mediation.
- Develop an appreciation that your client is making big decisions, and is expected to react to offers relatively quickly. These decisions have longstanding consequences; in short – be patient.
- Ask your client open-ended questions to ensure that they are understand the process, and are engaged in it.
- Ensure that it is your client’s interests that are being advanced. Sometimes a client may have interests that they don’t identify unless specifically asked.
- Recognize the signs of imminent impasse, and use moderated language to avoid forcing impasse.
- Don’t box your position in. Giving up your ability to compromise is rarely helpful.
- Make a list of all available options. Compare each option against best and worst alternatives to a mediated agreement.
- Re-evaluate the tipping point.
- Consider the possibility of adverse developments and their potential impact on your position.
- In circumstances were agreement is not possible, consider whether a brief adjournment to allow re-evaluation is preferred to failing the mediation.
Thank you very much for the kind introduction.
My portion of the presentation is going to focus on just a few of the hundreds of challenges that can and do arise during mediation. Obviously, where challenges can be anticipated, the best approach is to prepare for them in advance. However, some challenges, even when not anticipated, can be dealt with at the mediation even if you haven’t thought about them in advance. The real purpose of the presentation is to discuss ways in which you can manage the challenges that arise in the hopes that the effort and expense that goes into preparing for and attending the mediation isn’t wasted. You have also received a summary of the presentation in a handout which I hope will be useful to you.
Bad Data – Bad Criterion
Lawyers manage hundreds of files each, and are dealing with thousands of issues at a time between their files. Is it any surprise that on occasion a lawyer doesn’t remember, or didn’t know something important about the matter? Careful preparation should avoid this problem most of the time, but it will still occur.
Often times the issue arises during the opening. One party makes a representation that the other side disagrees with. If that representation is about facts, then those factual misunderstandings need to be cleared up before anyone can move forward.
In order to ensure that you can manage this issue, you have to have your file with you. If it’s a paper file, I know it’s heavy. However, a small factual misunderstanding between the parties can typically be resolved by finding and reviewing the document.
We all exchange our briefs in advance – read the other parties brief. If there is something in the brief that is wrong, you are better off calling or writing in advance of the mediation in order to resolve the issue. You empower the mediation process in circumstances where everyone is working from the same set of facts.
At least once a week the lawyers in my files get involved in an argument about the evidence from the examinations. Where possible, purchase transcripts so that again, the process doesn’t have to rely on recollection.
Take a computer to the mediation. Often times a quick google search will clear up a mistaken fact.
A similar challenge to bad data is bad criterion. Criterion is the way in which the facts are weighed for consideration.
Appreciate that for the most part lawyers are perceived as spin doctors. Where you can, rely on credible criterion to support a position. If you are talking about the value of a broken ankle, don’t just say what you think it is worth, because the other party to the dispute may have personal views that differ widely. Where the parties are using different criterion agreement is less likely.
Don’t say : I think the ankle is worth $50,000.00. Rather, show what the last five ankle cases received at trial.
Where possible remember the “show me don’t tell me rule”. Make your conclusions irresistible by supporting them with credible criterion.
Multi-Party Lack of Traction
Cases that involve multiple defendants represent a special challenge to the start of a negotiation. Diffusion of responsibility is a psychological phenomenon in which people are less likely to take action or feel a sense of responsibility in the presence of a group. Mediators see this phenomenon manifest all the time, sometimes with as few as two defendants. In circumstances where all defendants have come to mediation with a mindset that someone else is going to pay to resolve the case, getting the defense half of the negotiation to start becomes a negotiation within a negotiation, burning valuable negotiation time. Where possible, issues between the defendants should be discussed ahead of time.
This can be a particularly difficult issue to manage. As a mediator, I usually try to separate the defence group so that I can have a private chat with each. Again, a discussion about interests rather than positions will often be enough to establish that it doesn’t matter if you pay 50% or 40%, as long as you are satisfied with the outcome in dollars.
Evaluate options that represent something less than full settlement. In essence, start to pick apart the big problem as it may become easier to settle when some of the pieces fall into place.
For example, in a multi-party dispute, you may have to evaluate whether you can settle one of the defendants out with a Mary Carter or perringer arrangement.
Alternatively, you may choose to consider evaluating the damages only, to get that amount crystallized, leaving a shortened trial for the defendants to continue their dispute.
Hard – Bargainers – Two Ships Passing in the Night
For the most part, it is my experience that the first party to make a credible offer typically sets the anchor point around which the balance of the mediation is focused. Offers presented which are so far outside the realm of possible as to be meaningless, do nothing to advance the process, waste valuable negotiation time, and can quickly de-rail the negotiation.
At a minimum, any offer presented should lead the opposing litigant to continue to believe that settlement is possible. As such, any offer that is met with continued dialogue is sufficient to advance the process.
However, sometimes the parties are so afraid to give up any bargaining position that they make offers that are doomed to fail the process.
Neither party is likely to reveal their true position unless they can see that there is a possibility of settlement. Think about the message that your offer is likely to send? Ask your mediator if the message you think you are sending is likely to be received in the way you intend it. If not, you may want to re-think your message.
When dealing with hard bargainers I like to make a list of the strengths of the other side’s position and ask the litigant’s if they are at least prepared to agree with the list.
Use moderated language, atleast with your mediator. Your mediator has to be able to see the deal forming in order to be of assistance in pulling it together. If the language used by all parties leads any reasonable person to conclude that an agreement is not reachable, the mediation is set up to fail.
Client Management During Mediation
Remember that during a negotiation litigants are asked to make hard decisions that will affect the rest of their lives. Clients come to litigation with varying levels of sophistication and vulnerability. For many, litigation itself is an emotionally charged situation, and the negotiation of the issues over the course of a day can be stressful. For all of the above reasons it is vital that some management of the client’s expectations take place in advance of the mediation.
During the negotiation counsel must ensure that their client understands the effect of offers being presented and the substantive interest being advanced. Ensure that the client appreciates the rationale behind any compromise. With each offer, objectives should be re-reviewed to ensure that counsel and client are on-side.
Ask open ended questions to make sure that your client is listening and is being heard. The only one that really understands the client’s true interests is the client.
A client may choose to compromise their case for reasons that you don’t know or understand. That is their right. You have the obligation to help them if that is what they want.
During a recent mediation of a chronic pain case, the plaintiff started to tell me a story during the caucus about a recent foundation crack found in his basement. It would have been easy to simply ignore this unrelated, irrelevant and somewhat distracting story. But upon listening, the plaintiff was really properly identifying his interest. He needed money to pay for his basement.
Impasse in the Negotiation
All negotiations develop some form of impasse, and that is when the real work of the mediator begins. However, litigants who are motivated to settle should be mindful to do whatever they can to avoid impasse. Drawing fixed lines, or using language to send the message that further compromise and flexibility are no longer possible creates impasse as the litigant’s position must then be supported to preserve credibility. An impasse is as often as not a by-product of the way someone feels about the format or process of the mediation, rather then the positions of the parties.
Moderated language typically sends the correct message without boxing the negotiation into an impasse.
As an impasse develops it is usually helpful to re-visit the core issues in the litigation. A re-evaluation of the risk analysis that started the negotiation and a re-consideration of the expenses that will ensue once the tipping point is reached or passed should be all that is required.
Review the options available to the parties, all of them, even the bad ones. Write them down and discuss each one. Compare each option against the parties worst and best alternative to a negotiated agreement.
If mediation does not resolve due to impasse, make sure that the impasse is real. An impasse that derives from ego does nothing to advance the interests of a litigant.
When an impasse appears to be unbreakable once again, consider options that represent something less than full resolution of all issues. You are better off leveraging your kinetic energy against some of resolution, then walking away with nothing to show from the mediation.
If all else fails, try to identify and understand the reason for the impasse. Quite often an impasse is a byproduct of missing documents. In a recent case I mediated, the plaintiff’s lawyer served a useful economic loss report but the defendant still didn’t believe in the legitimacy of the plaintiff’s company. We adjourned the mediation so that the background documents that supported the income loss could be considered, and then we continued and concluded the mediation.