Mediation speed dating: the half-day case

recently saw an article on "speed dating" and it got me thinking about some of the issues involved in settling cases in half-day mediations. In the unlikely event that you have never heard of "speed dating," it's a process where people gather in a group, have a very short amount of time to meet face-to-face, exchange a limited amount of information to determine if there's any sort of connection, and either agree to meet again or go directly to the next "candidate."

Making a connection at speed dating probably requires a more personal version of what's sometimes called an "elevator speech," which is a statement that can be delivered in less than a minute in which a person outlines their professional interests and skills (the idea is that you can tell someone about yourself in the time that it takes to get to your floor on an elevator). Certainly, succeeding at speed dating undoubtedly requires a great deal of planning about what to say, how to say it, and how to present the most persuasive information in the shortest possible time.

In same way that nobody would, with any hope of success, approach speed dating without a plan, careful planning is important to the success of half-day mediations. Many of the same speed dating considerations of using time efficiently and presenting your position clearly and effectively apply to the process of resolving cases in the limited time available in the half-day mediation. And there are additional strategies that you can use to increase the probability of reaching a settlement in the half-day case.

First, be realistic. If your case is truly complex and genuinely requires a full-day mediation, ask yourself if you are really achieving anything by trying to squeeze a full-day case into a half-day mediation or whether you would be better off giving the case the time and attention that it needs. In short, if you have a full-day case, consider giving scheduling it for full-day mediation.

Second, recognize that you have a very limited amount of time. This means that you need to prioritize and keep some essential goals in mind. In short, you need to have a plan. The first step in a successful plan is to understand the need to educate the mediator before the mediation. In half-day mediation there usually isn't enough time to educate the mediator at the mediation and to have a rational discussion about the legal and factual issues and reach a settlement. The education process begins with a focused mediation brief. Concentrate on the essential facts and legal points. Give the mediator the "back story," to provide insight into the underlying relational, personality or economic issues that are the key to the settlement. Provide a realistic settlement range and a history of prior settlement negotiations. If necessary, prepare a time-line or a chart that shows the relationships between the parties. Don't dilute your brief with unnecessary information, such as hundreds of pages of exhibits - instead, extract the important language from the documents and insert into the brief with highlights to make the language visible.

Next, remember that mediation has two main components: "facts and law" and "econ 101." They each take time but there's only so much time available for both components in a four-hour mediation. While it's vitally important that your clients be heard at the mediation, having your clients repeat or rehash at length the factual issues that you have already stated in your mediation brief may consume an undue amount of time and prevent the parties and the mediator from getting to the "econ 101" component, where the real work of settling the case is done.

Expect that the mediator will ask you for a demand or an offer within an hour or so of the start of the mediation and be prepared to present a realistic number. In this regard, a four-hour mediation rarely provides sufficient time for "posturing" or artificially high or low numbers. In addition, the process of developing a realistic offer or demand is greatly facilitated by careful pre-mediation consideration of your BATNA, or best alternative to a negotiated agreement. Your BATNA is not your bottom line - instead, it's your analysis of what happens if the dispute doesn't settle at your bottom line. In other words, it represents careful consideration of how good or bad the alternatives seem to be if you can't reach a settlement. This allows you to judge where your bottom line should be and also allows you to determine whether you really want to walk away from a settlement that might be very close to your bottom line number.

Put the essential issues on the table right away. A good way to approach this is to start at the end and work backwards by sitting down and writing out a settlement agreement before the mediation. The agreement should contain all of the essential terms of the settlement, especially terms that involve more than the simple payment of money. Having a written settlement agreement prepared also facilitates the resolution of the case within the time allotted because you won't have to spend more time at the end of the mediation drafting a memorandum of settlement - you will have the document ready for everyone's review.

Prepare your client in advance of the mediation. Most clients, even sophisticated business clients, have never attended mediation and they likely have very little idea about the process of mediation and the central focus of the mediation process - the identification and analysis of risk and how risk translates into a resolution that both parties control. They may be equally unfamiliar with the role of the mediator. It's important to educate and prepare clients before the mediation, not at the mediation. In this regard, clients need to know that the mediator's job is to identify risk and that by doing so, the mediator is not "taking sides" or "deciding the case." They need to know that what is said at the mediation is confidential so that they feel confident about discussing the facts in an open and candid way. And, they need to understand and accept the basic proposition that settling disputes requires compromise on both sides as a result of a rational, thoughtful understanding of risk. Finally, clients need to be prepared for the idea that a settlement that is less than what they view as optimal is nevertheless valuable because it eliminates risk and exposure.

Have all the "nuts and bolts" issues resolved before the mediation. These include: bringing someone with full settlement authority, having contact information for insurance adjusters who may be out of state and making sure that the adjuster is available after the adjuster's normal working hours are over, being prepared to stay for the full time allotted for the mediation and a little extra in case the settlement requires more time, having the relevant documents at the mediation and in an organized fashion so that no time is wasted in looking for the documents.

Recognize that settling a case in four hours requires a team effort. You are part of the team. Thus, when the mediator says to you some version of "We need a plan to get to a resolution of this case," be prepared to come up with some suggestions (something other than "work your magic" would be ideal). You and your opposing counsel are, in fact, on the same team in one important respect - you are both there for the same purpose: to settle a dispute between your clients. While you might have divergent views of the facts, law and economics, your views should converge on the need to get the dispute resolved. In this sense, you must be ready, able and willing to work together to accomplish that goal.

Finally, arrive at the mediation with the goal of resolving the case and not with another agenda (or multiple other agendas) in mind. A four-hour mediation doesn't allow enough time to "test their resolve," or to get free discovery, or to have a meet and greet but make no progress. Settling a case in four hours requires a commitment to the settlement process and a desire to reach a settlement within the time scheduled. If you have that commitment and have made the necessary preparations, even a complex case can be resolved in half a day.