Litigation is deadly serious. Lawyers must prepare for it very carefully, and that is a lengthy process. Mediation is different – or is it?
Well, it is different, but mediation, too, is deadly serious, and preparation for it must be just as thorough. The biggest difference is the dynamics, because the parties are in charge of their own outcome. So having lawyers as gladiators, fighting the enemy and leaving blood in the arena, is not how it works. In litigation all decision-making is in the hands of the judge, and so often the winner takes all. But because in mediation each side must be content with the outcome, or they won’t agree to it, the lawyer has a very different part to play.
This is where empathy and understanding becomes important. The lawyer must decide which of their client’s arguments are worth running and which to leave in the background, and the lawyer must understand that the other side has arguments, too.
As a forensic accountant (my day job), I prepare for a Joint Meeting of Experts just as carefully as I do for a trial. Similarly, litigation lawyers and their clients must prepare just as carefully for a mediation. When arranging one, I send to both sides a Confidential Checklist which asks them to write down their strong points, their weak points, their best case and their bottom line, and so on; and it then asks them to pretend to be the other party and write down the same points. This Checklist is available to you on request.
The point is that mediation is just as much about timing, strategy, information gathering and client management as it is about negotiation. Preparation takes time, research and effort.
In a perfect world, this is my checklist for preparing for a mediation. It’s quite a list; do as much as you can, and the more you do, the greater the chances of your client coming well out of mediation. And with about 100 mediations under my belt, mine is the voice of experience!
If litigation is to be conducted “cards on the table”, a fortiori with mediation.
Exchange as much information with your opponent as you can, so that each party has enough to make fully informed decisions on settlement. Don’t copy the whole of your filing cabinet, of course, but do share in advance all of the relevant documents. “Killer” documents produced for the first time on the day don’t help at all!
A few weeks before the mediation, speak to your opposing lawyer and agree with them that each side has seen everything they need to see.
Read all your files as carefully as if preparing for a trial, and make notes of important points.
This is the time to plan what you want to say in your Position Statement.
Analyse your strengths and weaknesses as you go through your files. Think about how to handle any weak aspects, and plan how you will respond to them on the day; this is easier than responding “on the fly” to awkward questions during the mediation. Pretend to be your opponent (remember?) and do the same as if you were them.
Establish a range for the value for your case
What is the true value of your case? Look at precedents. Consider how your witnesses will perform under the pressure of a trial. Reach your opinion of the total value of your case, and then discount back for liability, downside on costs, and the risk that you may get a judge who gives an illogical judgement.
Consider carefully your client’s needs and intentions. When conducting mediations, I ask each party in caucus what they really want to achieve, and the replies are often quite amazing, and not connected at all to the arguments coming out of the mediation bundle. A mediator has to be very alert to the parties’ true needs, and work on them; but you, the lawyer representing your client, should have no such surprises because you should have asked your client beforehand what his true aims and needs are.
Does the client need an apology? A resiling from a bad reference? A mending of relationships? Future trade? You need to know, and to know how much less your client will accept in money, if they achieve their true needs.
Plan your negotiations
It is said in the army that any battle plan, however carefully prepared, goes wrong in the first few minutes. Maybe so, but it is still better to have a plan which can be modified as you go on, than sending troops blind into battle.
So with mediation, plan how you wish to proceed, and you are in a far better position to adapt on the day.
And take your client with you…
Agree the goal with your client
…which is the next point. This is your client’s dispute, not yours, so an outcome that may satisfy you could be anathema to the client. And it is not helpful if the mediator detects that the lawyer and the client have different agendas, and are pulling in different directions.
So meet your client, and agree with them both the outcome needed and the tactics which each of you will use to achieve it.
It is essential that all decision-makers attend the mediation. It is very difficult, after hours of negotiation, for one party to say that they have to ring someone before they can commit to a settlement, for that other person knows little about what has been discussed.
That party outside the room may be a claims manager, or an elder of an ethnic community (“if I agree to this will I lose the respect of my community?”) or a spouse (“if I agree to this will my wife ever understand me or trust me again?”). The absent party must be involved, must be there, and must understand why a particular settlement is reached.
I once did a professional negligence mediation where a litigant in person came with a claim for £750,000. It settled for £30,000, well within the defendant firm’s excess. And the claimant was delighted with the outcome! But the thing which made the settlement possible was that, with the six lawyers for the defence, there was a claims manager who wrote off costs to date of £169,000. Without that, there would have been no agreement. The claims manager was the true decision maker, but think how seldom we have the luxury of them attending a mediation!
Prepare your Position Statement
After your careful review of the files and discussions with your client, this is the easy bit.
Make it brief, and make your bundle of documents as slim as you can. The mediator doesn’t want to know all the detail, and you don’t have to convince him of anything. He will keep to the big picture; the more you delve into the detail, the less chance you have of settling. And I normally prefer that experts are not present.
Consider whether it is possible for the Position Statement to be joint with your opponent. That helps a lot; the mediator can understand the issues very quickly, and hit the ground running.
How much should you tell the mediator in confidence?
It may be helpful for you to prepare a private briefing note to the mediator, or speaking to him. He doesn’t want to know about the bile of a broken relationship, but he does need to know the client’s true attitude.
I make a point of speaking to each lawyer in confidence, before a mediation, to ask what sort of a client we are dealing with, what they seek to achieve, and then of course costs to date and the costs to trial which will be saved if the mediation settles.
As, almost every time, they do.
I do hope these notes, from a battle-scarred mediator, are of some help. I wish you success in meeting your client’s true needs, but remember that the secret of success is preparation.