5 mediation rules you can't do without

For not only experienced counsel but also lawyers who are just starting their careers, sometimes it's helpful to get back to basics in order to maximize the odds of resolving your litigated matter in mediation. So, at the risk of sounding like one of those hyperbolic sponsored internet sites "Five Reasons Why Your Body Needs Cottage Cheese!" here are five basic rules to follow for a successful mediation.

RULE 1: PREPARE THE CLIENT

This doesn't mean tell the client where and when to show up (although that's a good idea). It means prepare the client for the essential reality that a settlement requires compromise that reflects the risk inherent in all litigated matters and the recognition that while imperfect, a settlement is nearly always a better alternative to the expense and uncertainty of a lawsuit or arbitration. An unprepared client who arrives at mediation expecting the mediator to persuade the opposing party to entirely capitulate will be disappointed and a successful mediation is unlikely.

Explain that the mediator does not decide the case and that everything said in mediation is strictly confidential. It is surprising how many clients, even sophisticated clients, have an expectation that the mediator will somehow "decide" the case (in their favor, of course) as a means of achieving settlement (favorable to them, of course). It is important for clients to understand this because there is a tendency to confuse the mediator's evaluation of the case with the idea that the mediator has "decided" the case. This is often expressed by clients in the following way: "It seems like you have decided the case in their favor" or "It seems like you are taking their side."

RULE 2: ATTORNEY FEES

In so many cases the negotiating leverage turns on the availability of attorney fees. Shockingly, in so many cases the lawyers have not made this determination before the mediation. When the issue is raised and it becomes clear whether fees are available, it takes time and effort for the parties to recast their expectations. For plaintiffs who thought that they could recover fees but cannot, expectations must be lowered (the expenditure of unrecoverable fees cuts directly into the "net" proceeds of the judgment or arbitration award). For defendants who thought that fees were not recoverable, expectations must be raised because exposure is increased (the risk of having to pay two sets of attorney fees by a losing defendant). In many cases, there are contractual provisions that limit attorney fees. As an example, the California Association of Realtors standard purchase and sale agreement, with a few narrow exceptions, precludes the recovery of attorney fees if the plaintiff files for arbitration or files suit prior to mediating the dispute.

RULE 3: HAVE THE DECISION-MAKER AVAILABLE

If husband and wife are parties, both need to be present. If a board of directors makes the decision, a majority of board members need to be present. If the party is a corporation, an officer with authority to settle needs to be present. If an insurance adjuster will make the decision, ideally the adjuster needs to be present - if the adjuster is out of state or in some other location, it is imperative that the adjuster be available at all times during the mediation and if the adjuster is in another time zone, the adjuster needs to know in advance that he or she must be available even though it's well after normal working hours. Nothing inhibits the progress of settlement more than waiting for hours for an adjuster to respond to a cellphone call, text or email. Nothing alienates, irritates or discourages the other side than a report that the adjuster cannot be reached or that a deal can't be made because an essential party is missing from the mediation.

RULE 4: CONCENTRATE ON THE ESSENTIALS

Even in complicated cases, there are only a small number of essential facts and essential documents. Notebooks full of hundreds of exhibits might look good, but they rarely make much of a difference in mediation. What does make a difference is an intense focus on the truly important issues and the facts, testimony, documents and law surrounding those issues. If there is a letter or email, or some other document that positively proves the point, don't bury it in the middle of other documents or emails. If there is an invoice that shows how much it cost to repair damage, put it in the brief and bring it to the mediation. If the damages can only be proved by hundreds of individual invoices or other documents, just summarize the "bottom line" and let the mediator and opposing party know that you have all the back-up information available. In this context, however, the word "summarize" does not mean "spreadsheet." Spreadsheets are notoriously difficult to assimilate. Summaries are much easier because they are shorter and to the point.

Here are two examples from recent cases: In one, a dispute erupted between the owner of a condominium project and the general contractor. The main point of contention was the contractor's claim that a certain construction component had not been included in the plans upon which he bid the project. The owner supplied a lengthy brief and hundreds of plan sheets, when all he really needed to do was extract from the plans the one detail on the one plan sheet that showed the component. In the other, a homeowner-real estate broker dispute, the homeowner claimed that the broker reduced the listing price without the knowledge of the owner. The only truly relevant document was the listing agreement with the owner's signature. The many other documents in the case were interesting but relatively unimportant.

RULE 5: MAKE A DEMAND BEFORE THE MEDIATION

Imagine that you are demanding that someone pay you a great deal of money. Further imagine that you know you will encounter resistance and that the person isn't likely to pay your demand and will want to negotiate for a smaller sum. Lastly, imagine that this negotiation must be squeezed into a limited amount of time.

Would you ever make your demand for the very first time at the start of such a process? Not if you wanted to have an efficient and successful negotiation. People need time and space to process information and demands. Lawyers who receive demands need time and space to consider those demands and discuss them with clients. Insurance adjusters need time to evaluate demands and often, if the demand is large enough, to obtain authority to meet the demand or a number close to the demand if the claim warrants a payment of that magnitude.

There's an important subset of Rule 5: make a demand that represents an objective and realistic evaluation of your case. Demanding a million dollars for a minor fender-bender isn't going to accomplish anything. Demanding punitive damages in a garden-variety breach of contract case isn't going to accomplish anything except diminishing your credibility with the other side. Having unrealistic expectations and goals merely delay and destroy the process.

All of these rules might sound simple, or even simplistic. But here's something to think about. If you know anything about flying, you might know that pilots have a written checklist that they follow every single time that they fly an airplane. Some of the items on that checklist seem simple, or even simplistic (such as, when preparing to land: lower the landing gear). But rules, even simple rules, are there for a reason: when we follow them, we generally get a better result. When we don't, bad things tend to happen.

For a better result, try following these simple rules and see whether your next mediation is more efficient and more effective.