Building a Bridge Over Troubled Water
In many ways, the process of mediation incorporates several of the same elements as a musical composition. Think about these key aspects of a musical composition as important elements of any mediation.
I. Introduction and Arrangement:
Interview your mediator before you make a selection. The mediator should have credibility with both sides. Often, institutional clients, such as insurance carriers, have their "preferred mediator lists". That may be workable if you want to select a mediator that has credibility with the institutional client. There is sometimes a strategic value to selecting a mediator that the other side prefers. But also carefully consider the mediator’s background and skill set. Does the mediator have experience with the subject matter involved in your case? What is the mediator’s style and approach--evaluative or facilitative? Separate caucusing or joint sessions?
After selecting a mediator, communicate with the mediator before the mediation. Counsel, the parties and carrier representatives should feel welcome to do so. Your mediator may take the initiative and reach out before the mediation. Seize the opportunity to persuade the mediator to see your client’s point of view in the days or weeks before the mediation. You may get the mediator to work harder for you.
Prepare the other side. Exchange your mediation brief with opposing counsel. This is your chance to educate the other side about your client’s position and increase the likelihood they will come prepared to realistically negotiate. Of course, you can also file a separate confidential brief with the mediator.
Think about issues that may create the “mediation within the mediation.” For example, are there insurance coverage issues? How will the claims and defenses impact insurance coverage? Do the clients understand the concept of mediation confidentiality? Will the clients in attendance have full authority to execute an agreement? If CCP §664.6 enforceability is desired, the parties themselves must execute the settlement agreement. Levy v Superior Court, 10 Cal 4th 578 (1995).
All too often, there is a tendency for the mediation to expand or contract to fill the scheduled time. Is the pace dragging? Is your mediator touching base with the parties or disappearing for hours at a time?
Is the mediation bogging down on tangential points or issues? Are there too many war stories and interruptions?
Bring your mediator up to date on the status of settlement discussions before the mediation. Avoid winding up three hours into the mediation exchanging numbers that were exchanged weeks or months ago. Outrageous offers and demands are usually not constructive. This can kill momentum and add to the fatigue factor. At the same time, advise your clients to exercise patience--sometimes negotiation is an unavoidable game of chicken and real movement happens later in the day.
Are there points of agreement to build upon?
The mediator should adapt his or her style to fit the circumstances and personalities in the room.
Too much posturing can be counter-productive. What are those real issues and interests? Where is the money coming from? Your mediator may offer advice on negotiation strategy. He or she may see options that the parties and counsel do not. On the other hand, counsel and their clients know their case and the mediator must be prepared to listen. Ideally, there is a spirit of cooperation in each room as the various potential settlement options, offers and demands are explored.
Hopefully the parties believe in their positions and can back up their numbers. The position of a party that can establish credibility will be more saleable for the mediator. Think twice about the wisdom of reversing course and advancing a position that is more aggressive than your last offer or demand. Such an approach may shut down the discussions.
An atmosphere with more light and less heat is usually more productive. However, in separate caucus, the mediator should let the parties vent if desired. The mediator may also comment on the temperature in the other room if it makes sense to do so.
V. Improvisation- Creative Solutions:
Are there ways to expand the pie? Is there a settlement piece that may be value added as additional consideration? Is there non-monetary consideration to offer? An apology? Shift the cost of mediation? Resolve insurance obstacles such as reimbursement issues? Payment terms/installments? Financing payments or the insured defendant securing a loan from the insurance carrier? Is there a prevailing party attorney's fee issue holding things up? Can such fees or other issues be carved out? Is a high/low settlement contingent on the outcome of further proceedings an option? Is the negotiation such that bracketed offers and demands makes sense? Is the case ripe for a mediator's proposal?
VI. Coda- the Negotiated Resolution:
It is important to avoid arguing over issues at the end of the day that should have been addressed earlier in the mediation. Such issues typically involve taxation, confidentiality, scope of release language, and various other non-monetary issues. Raise these issues early –not at the end of the day.
Try to reach an Agreement signed by the parties, intended to be final, binding, and enforceable under CCP §664.6. The Agreement should indicate that it is admissible into evidence to prove the existence of the Agreement should that become necessary.
If at first you don’t succeed, keep at it! Your mediator should follow up after the mediation. Many cases resolve as a result of such continuing discussions, or if necessary, in a subsequent mediation session.