Several months ago my friend Don Keenan wrote about mediators and mediation in his blog www.keenantrialblog.com “How to Handle the Bullying Mediator” I told him how on target his views were and gave him my views, which follow below. To start with, when I began a plaintiff practice negotiation always involved discussions directly with the insurance adjuster, the insurance company or the defense lawyer. However, mediation has become a cottage industry and we should learn proper skills for doing it right. Particularly since most of our cases settle and do not go to trial. Here are some of my thoughts about mediation. I concede that not all lawyers view mediation and the role of the mediator in the same way as I do. I also acknowledge the essential role skillful mediators play in settlement of cases. However, my view of mediation has these policies:
Relationship with the Mediator The mediator is not our ally or our advocate. The mediator doesn’t have the duty of ensuring a favorable settlement for our client. The mediator isn’t in the role of a judge in a non-jury trial. The mediator’s goal is to settle the case if possible. We need to keep that in mind when we decide what information we decide to share with the mediator. We also need to screen and control all communication we allow between the mediator and our client.
The mediator’s authority. In a voluntary mediation, the mediator doesn’t have judicial or any other inherent power or authority. It shouldn’t be the mediator who sets the rules for mediation. The conditions of mediation should be an agreement between the parties involved. We generally should be professionally civil with the mediator and our opponents at the mediation but, this is a voluntary process and we are not obligated to obey the mediator’s demands or directives if it’s against our best judgment. The mediator has no inherent authority to order us or require us to do anything we don’t want to do. Retired judges do not bring with them the inherent power of the judiciary when they retire and become mediators. I make very clear I will not be intimidated to follow any requiremkents of the mediator I don’t agree with as in my client’s best interests.
Role of Mediator From my standpoint, the primary role of the mediator is to communicate relevant information back and forth between the parties, determine the likelihood of settlement and relate insight gained in the process. It is the role of the mediator to keep people focused on issues relating to settlement. It is not the role of the mediator to determine the settlement value of my case nor to determine my chances of winning. That’s the lawyer’s exclusive role. The attorneys in mediation are expected to be fully prepared and know their case better than anyone. They are expected to have fully and carefully evaluated their case and the settlement ranges before the mediation takes place. No lawyer should go to a mediation relying upon the mediator to evaluate their case or chances of winning. Nor should we give any credence to a mediator’s attempt to evaluate our case based on other settlements or other verdicts. There is no validity to such attempts to compare what can’t be reasonably compared given all the unique factors in each case outcome.
Mediation Policies I believe we should have guidelines we follow in mediation. The time to establish ground rules for you to participate in mediation is before the mediation begins not at the mediation. The best way to accomplish that is by a preliminary mediation letter sent to the mediator and the opponents so everyone knows your conditions of mediation. Here are some of my mediation policies:
- Confidentiality.While not all lawyers agree, my policy was that we would not agree to confidentiality about the settlement. If the client wanted to keep the matter confidential, we honored that as a client choice but, not as a condition imposed as a condition of settlement by the defendant or insurance company.If that is your policy, you need to make it clear before the mediation begins.
- Written agreement. To avoid post mediation disputes, I required that all parties sign a written memorandum of all terms of settlement before we left the mediation or there was no settlement. To facilitate this, we had a written memorandum with blanks dealing with the important issues such as the amount, the time for payment and other conditions of settlement. We brought this to the mediation and before we left it had to be signed by all responsible parties involved. Otherwise there was no settlement.
- Meeting the opponents. My requirement was that I met and talked with everyone involved in the mediation from the other side. I also needed to know their role. Most mediators are reluctant to do this probably fearing a confrontation that would sour the mediation. But, I don’t negotiate with unknown people I haven’t personally appraised. Relying upon the mediator to give an overall view of the people you’re negotiating with is not the same as meeting and talking to them face-to-face. Know who you’re negotiating with before you start mediation.
- Limit the time. I always had fixed time limits for the negotiation to take place. It’s been shown that in a great majority of situations 80% of the progress is made in the last 20% of the available time left before a negotiation ends. I had firm, non-flexible established hours set for the negotiation. If you have no deadlines and fixed hours set, you can count on the mediation going on indefinitely. With an experienced and qualified mediator focused on moving the mediation forward he or she should know in less than two to three hours whether there is a reasonable potential for settling the case. If not, it is a waste of time to remain. You can usually reschedule another mediation. If not, try the case. My standard time allowed for mediation, even in major cases was four hours starting in the morning. I made it clear that if at the end of that time it was my view that the case was not likely to settle the client and I would leave. I always held the option of staying longer if beneficial, but also set a fixed deadline to end the mediation. Even if the mediation continued I made it clear there was an afternoon final and inflexible deadline. Otherwise, mediation would continue to drag out forever.
- Make the first subject money. There are usually more issues than just money in a negotiation of a personal injury case. If you want to know whether there is a reasonable chance the case will settle insist that it start with money and not other issues in dispute. Do not let the mediator or your opponent’s waste time on other issues until you know there is a likely potential for agreeing on the amount. If not, none of the other issues count anyway. Furthermore, once the money is agreed upon those issues are a lot more easy to resolve. When negotiating money my policy was to refuse to engage in the game of multiple back and forth demands and counter offers of small amounts extending over a long period of time. The parties are either are in a potential settlement range or they aren’t. Find that out as soon as you can. It’s a waste of time to engage in negotiation games.
- Control the mediator’s communication with you client. Our client has hired us as their lawyer, not the mediator. We are the only persons who should give advice to our clients. Our clients didn’t hire the mediator for advice. Therefore, we should decide what information is shared and what advice is given our client. No one else should be allowed to talk to our clients about settlement issues. The mediator is not our client’s advocate nor our ally in the mediation. The mediator should have all relevant information to do their job, but not by uncontrolled communication with our client. We should never allow a mediator to talk to our client’s privately. Nor should we allow the mediator to question the client, advise the client or otherwise have any unsupervised involvement with the client. We should control what information the client does give to the mediator for the same reason.
These and other considerations about mediation can be of significant help in mediation procedures.