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MEDIATION TIPS FOR
RISING AND OTHER STARS
by Terrence Lee
Croft
MEDIATOR SELECTION
Mediation is not
just an option; in many courts it is required, though at the wrong
time in the life of the case, and with the wrong choice of mediators.
Today, counsel frequently consider mediating even before filing
pleadings. So, the issue is not whether to mediate, it has become when
and how to mediate. Often, this involves the consideration of the use
of a provider, as well as the selection of a mediator.
Cost is certainly
a factor; inexpensive court sponsored programs are an alternative for
extremely cost conscious counsel and their clients. However, you get
what you pay for, and for most cases worth filing, the value of an
effective mediator, who produces a resolution long before litigation
could, results in a substantial saving of time and money and an
increase in client satisfaction.
The process for
the selection of the mediator has changed over the years. At first,
the Lions of the plaintiffs' trial bar espoused the theory the "he who
held the checkbook should select the mediator"; apparently based on
the assumption that if defense counsel and his claim representative
approved of the mediator, they would be more likely to follow that
mediator's recommendations and the chance of settlement would be
increased. This may have accounted for the rise in popularity of
mediators who had been life-long defense lawyers! This was
particularly true in insured liability cases. These days, the
authority to settle often comes from a supervisor or round-table of
supervisors who never attend the mediation, and who may have little to
do with the selection of the mediator. Now, both sides recognize that
mediator selection is often critical to settlement of the case and
that selection is carefully negotiated.
Today, experienced
advocates in mediation, with serious cases brought before private
providers, prefer mediators with a body of successful process
experience. They want mediators who have mediated a substantial number
of cases and settled most of them. Of course, knowledge of the
substantive law involved, especially in cases in an unusual or arcane
nature, sometimes can be important. Most of the time, a knowledgeable
advocate can teach an experienced mediator the controlling law on the
narrow issues involved, during the pre-mediation telephone conference
or in the written mediation statement. But, even the best advocate
cannot teach the mediator how to mediate!
How can an
advocate identify a good mediator for a particular case? ASK! Ask your
colleagues and friends at the bar. Sometimes that even includes your
opposing counsel, but at the right time and after you have candidates
of your own.
Ask the proposed
mediators about themselves, their experiences with opposing counsel,
their familiarity with the substantive area and their general methods
used in the mediation process. Do they use opening statements? Will
they use early bracketing? Will they see the mediation through until
resolution? Do they know how to effectively use a "mediator's number"?
Look them up on
the Internet, especially on their own or their providers web sites.
Use LinkedIn, Georgia Academy of Mediators & Arbitrators (georgiamediators.com),
the National Academy of Distinguished Neutrals, and other
organizations. Look for membership in local, state and national
associations and their ADR Sections. Ask your mediator friends who are
not under consideration for the case to suggest other potential
mediators. If all else fails, look at the very long list maintained by
the Georgia Office of Dispute Resolution. You can even confer with a
coach or consultant who specializes in helping to solve thorny ADR
issues.
Make sure you have
an experienced mediator, with a reputation for resolving cases, who is
competent to mediate your area of law and who will be respected by the
other side, as well as by your own client. You need a mediator that
everyone will listen to and respect.
MEDIATION ADVOCACY
Too many lawyers
confuse litigation advocacy with mediation advocacy.
In a court room,
there is a triangle of communication between you, the judge or jury,
and the opposing side. You must entertain and persuade, while you
establish credibility with the jury. You can describe the other side's
terrible mis-deeds and exaggerate for emphasis, with a plethora of
descriptive adjectives and adverbs. But, when sitting across the
mediation table there is no jury, no triangle. If you call your
opponent names and vilify him when he is sitting right in front of
you, you will aggravate and offend him past the point of any
reconciliation. Good mediation advocacy consists of teaching and
explaining to your opponent why a jury will decide that your position
prevails over his.
Failure to
recognize that instructional teaching, as would be utilized by a
Sunday School teacher with young children, is more effective than
bombast and brimstone in the opening or plenary session, wastes a
unique opportunity that mediation provides. It is the only time in
most cases when you can talk directly to the opposing client.
Moreover, because so many advocates have polarized opening sessions
with their mis-use of litigation advocacy in mediation, many
mediators, especially in the western United States, simply eliminate
that session.
Skipping the
opening means that each side is mediating with the mediator, instead
of each other. Every time the mediator comes into the room, you blame
the mediator for the information he brings. You and your client argue
with the mediator and do not listen. You become adversarial.
Compromise becomes more difficult.
Utilize the
opening session with your opponent to make a low-key, but persuasive,
presentation that helps the other side to understand your case and why
you predict it will prevail. Discussing this issue in advance of the
mediation with the mediator is critical. It may be worth discussing
with opposing counsel, too.
As the art of
mediation continues to develop, stay informed about those
developments. Your provider may even make seminars available to you
for no charge to help you stay current. Again, just ask. ■
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