Reprinted with permission of TRIAL (April 2006)
The Association of Trial Lawyers of America
April 2006 | Volume 42, Issue 4
What mediators really want to hear
Three veteran mediators tell what you should do and say to put your best foot forward in negotiations.
Mediation is a very different setting from trial. Instead of a judge or jury, you must persuade a mediator--as well as your opponent--to reach a settlement.
So how should you approach a mediation? What really persuades a mediator? What demonstrative evidence should you use? What mistakes are sure to derail your negotiations?
To answer these questions, TRIAL brought together three respected mediators to discuss their "dos and don'ts" for trial lawyers. Judith Meyer, a former litigator and now a mediator and arbitrator with JAMS in Philadelphia, served as moderator of the discussion. John Leo Wagner, a former federal magistrate judge, is now affiliated with Judicate West in Los Angeles. Joe Epstein, a former trial lawyer, is a mediator with Conflict Resolution Services in Greenwood Village, Colorado. Here they discuss how you can present your most persuasive case in mediation.
Meyer: Going into a mediation session, what really helps a mediator?
Wagner: What helps me is getting information from the lawyers before mediation, ordinarily in the form of a brief. I generally also ask for a confidential memo of things they want to tell me but don't want to tell the other side. And when I can do it, I push for premediation conference calls with each lawyer.
It's helpful to get a fix on where the emotional content lies. Who's angry at whom?
Epstein: Preparation--by the parties and by me--is key. I try to start out with an e-mail to all the parties, asking for a thumbnail sketch of the case, who they think should be present, and any key issues that might affect my thinking about the case and how to design the mediation. Then I call the parties individually and, using the information they've given me, work with them to design the mediation. Sometimes I set up conference calls with all the parties. For example, I did a multiday mediation in Salt Lake City that was a multiparty case. It required meeting in advance with each party for a couple of days and then having meetings that adverse parties attended together.
If we're lucky, the parties submit confidential mediation statements that I also use to help design the mediation. I ask people to send those a week in advance, but sometimes they don't come until just a few days before the mediation, and that's too late to be of help in designing the mediation.
In some communities, a mediation statement is confidential and is given only to the mediator. In other communities, there's a more open practice of making it available to the other side. I have developed the practice of recommending that each party provide a mediation statement to the opposing party and give me only those things that they prefer not to share, so there are fewer surprises at the mediation.
Meyer: I, too, start with individual private calls--I refer to them as separate caucus calls or private caucus calls--with the lawyers. I sometimes meet with each lawyer and his or her client, and sometimes I meet with the client alone if the lawyer wants that, just to get a feel for who the players are and what they expect from a mediation. I ask the parties to exchange anything they want to exchange with each other, but anything they don't want to exchange is kept confidential.
In their confidential mediation statement, I want them to tell me what they think both sides' impediments to settlement are; what they think the other side's goals are; what they would like to accomplish, not a bottom-line statement, but their general goals; and how they think we can all get there.
I want to know whom they want to talk to. If the defendant is a corporation, it's rarely possible to have a CEO attend the mediation, but if the plaintiff wants the CEO there, the defendant has to make some effort to show the plaintiff that they understand this and that they will send an appropriate substitute. And of course, a person who's a "hot button" for one side should probably not be part of the joint sessions.
In one multiparty construction case I handled, the lawyers asked that I meet with their experts before any of us got together so that I fully understood each side's position.
Wagner: We often do that in environmental cases, either that or have a premediation meeting between the experts. They may not agree on the various technical issues involved, but at least they get an opportunity to hear where the other side's expert is coming from.
Meyer: What materials should the advocate bring to the mediation? What should he or she provide to the mediator (or other side) beforehand?
Epstein: I have seen a lot of PowerPoint presentations. In my general experience it's a mistake for either party to wait until the mediation to provide these to the other side, because frequently the decision-maker is a CEO or other high-level employee who does not appear at the mediation. However, having said that, I have seen very powerful presentations in insurance bad-faith cases.
I think the most effective demonstrative exhibit at a mediation is the party or the parties, particularly in personal injury cases. I encourage the attorneys to step back and let their client be the spokesperson. I encourage them to prepare their client for the mediation and let him or her influence the opposing client.
Wagner: It's helpful, particularly in personal injury cases, if the parties provide information regarding attorney fees and liens that will be paid out of the settlement funds, because these often factor into the settlement equation. Also, they should bring recent court rulings that aren't included in the brief they've submitted to me. If they are relying on a particular case, it sometimes helps to bring a printout of the ruling with important points highlighted.
I agree with Joe on the PowerPoint presentations. In the mediation of a case in Nevada involving high-dollar electrical power contracts, the plaintiff attorneys absolutely insisted on a long PowerPoint presentation the first day. It took me another 12 days of mediation to undo the damage that was done.
Elected members from the defendant electrical power authority board attended and were offended by the content, tone, and length of the presentation. They thought less of me for permitting it and were angry with their lawyers because they did not have a similarly aggressive presentation. They felt persecuted, misunderstood, poorly represented, and abused.
They became dead-set against any settlement and communicated their position in no uncertain terms to the remainder of the board. The offended board members refused to participate further, and different members attended the following mediation sessions. Those not personally exposed to the PowerPoint presentation were persuaded to support the concept of settlement. But because it was an election year in the company and the presentation had already poisoned the well, the mere "willingness to settle" became a political issue, even without any specifics as to what the settlement would or could be.
So, I learned the hard way that even a well-done PowerPoint presentation can be the kiss of death. It takes up a lot of time, and it's likely to raise the emotional content in the case. Besides, many presentations are not interesting or well done. They are usually boring and pedantic--and that's the real reason people resist sitting through them.
Despite their drawbacks, I have also seen PowerPoint presentations work fairly effectively. If someone says they have a PowerPoint presentation, I encourage them to provide it to me in advance. I screen it, and if there is some value to it, I usually recommend that they provide it to the other side in advance. This avoids needlessly expending precious mediation time and unnecessarily inflaming the parties' emotions.
Meyer: That leads to an obvious next question: Do you give people a schedule of presentations in advance so that one party doesn't go on for eight hours?
Wagner: I usually put time limits on any presentations. Of course, the initial inquiry is whether we are going to allow presentations at all. In recent years, I've stopped doing opening sessions where the parties lay out their entire case. I now usually conduct joint sessions only later in the mediation process when they can be focused on specific issues.
Epstein: That's the route I've gone as well. If I haven't met with the parties in advance, I have a cup of coffee with each of them at a private caucus at the beginning of the day. Then I focus my general joint session on key issues. I may suggest that they bring an expert along to discuss a key issue, but I suggest limiting the time for each expert.
Meyer: It's always useful for a personal injury attorney to bring in a day-in-the-life video, especially if it's a wrongful death case. There's one attorney in Philadelphia who does that routinely, and those are generally very powerful. It's a preview of evidence to come if the case goes to a jury. With evidentiary materials, I'd rather have more than less--not that it all will be presented, but the materials are there if needed.
It's always useful for advocates to highlight materials if they are going to provide them to the mediator or to the other side. There's nothing like looking at a 20-page document and wondering just where the relevant paragraph might be.
Meyer: What else should the advocate be sure to do to prepare for each mediation session?
Wagner: The first thing is, get your own house in order. When several lawyers represent one party, they should decide who's going to be the lead counsel. Who's going to be the good cop, and who's going to be the bad cop? Who's going to provide information, and who's going to make the legal arguments?
Once the lawyers have their game plan down, then they need to coordinate with the client and make sure the client is integrated. If the clients need to be buffered, they need to decide how that buffering process is going to take place and who's going to do it, and coach the clients so they know how to take cover during the mediation if they need to.
The lawyers need to evaluate the mediator. Is the person a weak or strong mediator? Is he or she overbearing? Lawyers must modify their tactics to accommodate the type of mediator they have. For example, if the mediator is a sitting federal judge who is determined to get the case settled at the expense of your client, it is imperative that you make him or her go through you to communicate with your client and that the client not be left alone with the judge in a room. You act as the buffer between the overbearing judge and your client.
If you have an obstinate client and a talented private mediator, you may want to arrange for a private session between them, so that the mediator can put the client through a "reality session." If you have a weak mediator who is about to let a desired settlement crater, you may want to meet privately with him or her and give suggestions as to what to try next.
Epstein: One thing lawyers need to do beforehand is to try to imagine what the opponent's expectations are, what their frame of reference is, what they might be feeling. They also need to consider the spiritual component that exists in the case and how that may or may not be addressed in the mediation, particularly in wrongful death, employment, and catastrophic injury cases.
Meyer: Do you think most lawyers are comfortable with the spiritual component in mediation?
Epstein: Many lawyers do not address this component of the case. I imagine that some don't do so because it makes them uncomfortable, while others don't think it's necessary. In any event, when I feel it is appropriate, I do so in a direct or an indirect fashion.
In a wrongful death case involving a Cherokee woman, I was able to reach her in a different way because of my background with Native American tradition. I let her give voice to her grief, shared in the moment with her, putting the case aside for a moment, letting her process her grief during a caucus.
When a person becomes a paraplegic or quadriplegic, there's a real loss of self. How do we touch that? How do we acknowledge that? You don't always have to verbalize that acknowledgement. It can be felt. I think people can feel other people's compassion.
As a plaintiff attorney, I used to feel that I gave a part of myself for each of my clients. I'm willing to do that even now, and to me that's part of what mediation is about. I've decided that I'm willing to talk about this component of mediation and not worry about people's reactions.
Meyer: I think that takes courage. I always hope that counsel will prepare for mediation by reminding themselves to view the process as a joint problem requiring a solution and not a competition to win or lose.
I hope they remember to be respectful and civil, even when they are provoked. I want them to be able to say that they won't necessarily use every legal argument available to them, because they've come with the intention of putting their best efforts into reaching a settlement. I want them to understand that although they are crafting a settlement in the shadow of the law, the legal positions will just be wallpaper in the background. I want them to expect the other side to be as pragmatic and forthcoming as they hope to be.
Wagner: This whole discussion assumes that the objective of the mediation is to settle the case, but that's not always true. Sometimes the objective is to use the mediation for other tactical or strategic purposes. Advocates should think and talk with their client in advance about what the objective is--what are they trying to accomplish? And I think it's smart for the advocate to share that with the mediator, because you can have a mediator really trying to get something settled when it's pretty clear that the objective is not to settle the case.
Epstein: In catastrophic injury cases, sometimes the defense will want to gather some discovery, while the plaintiffs are geared up to resolve the case. When parties come with different expectations, cases don't resolve and it becomes very difficult to get the parties back to the negotiating table.
Meyer: Right now I'm in the middle of an employment mediation where the money issues have been settled but the corporate culture issues have not. The corporation is falling more and more silent, stonewalling at this point, and I'm not sure they came in with the intention of seriously looking at their corporate culture through the eyes of a suffering employee. The employee and her attorney are becoming angrier rather than calmer.
Wagner: I always ask during the premediation process and early in the mediation: What is the objective? What are you here to do? What are your expectations? What do you want to accomplish?
The defense may say, "We want to do some initial exploration, but we don't really think it's going to settle at this stage. We want to establish a line of communication, do a little discovery, and start learning about the case from the plaintiff." But then the plaintiff says, "We want to get it done today."
Your job is fairly clear at that point--you have to start reducing the plaintiff's expectations. Maybe you give them an early out or an option not to do the mediation at that point. I think you have to do damage control.
Epstein: That is why premediation discussions with the parties are so important. If we can ascertain the parties' expectations in advance, we may realize we first need to get the parties on the same page regarding their goals.
Meyer: Do you find demonstrative evidence helpful in mediation sessions? What kinds of demonstrative evidence might you encourage and what kinds might you discourage?
Wagner: I like photographs and chronologies. These help me get a better grasp of the facts.
Epstein: I agree.
Meyer: If contracts are involved, I like to have them made available to all parties, with the sections that each party is relying on highlighted. Also, bring and highlight any memos or e-mails that are going to be discussed.
If the parties say, "We haven't produced this in discovery," I say, "Well, if it's the kind of thing that will be produced in discovery eventually, why wait? Why not produce it now if you're serious about resolving your case?"
Meyer: How should the advocates begin the negotiation? Should they wait for the mediator to set the protocol? Who should make the first offer? How do you get the process rolling?
Epstein: I think a lot depends on what type of case it is and whether there was any negotiation outside of the mediation session.
Generally, I recommend that plaintiffs make a demand before the mediation, especially in large personal injury cases. In other cases, they may want to wait until the mediation and listen to the other side before making their demand. In insurance-based cases, I suggest that the larger the case, the sooner the plaintiffs should make their demand package available to the other side, because it has to go up through different layers of authority. Also, the amount of the demand may affect who has to come to the mediation because of different levels of coverage.
Wagner: When I was on the bench, I experimented with different approaches. I would order the parties to exchange a demand and preliminary offer before the mediation session. The parties sometimes used these for tactical purposes. For example, a plaintiff might make a large demand that was unreasonable in the context of the case, and then the defense would use that as an excuse to try to scuttle the mediation effort. Other times the plaintiff might make a good-faith offer that was so low the defense would crawl all over it. If I can, I coach the parties on the numbers in advance. They need a place to start, and the initial numbers that get thrown out generally don't have much credibility anyway.
I want to know what has happened between the parties before the mediation. I want to know what numbers have been informally discussed over coffee. I want to know about any loose talk, such as, "If you would do this, maybe I can get my client to do that."
Epstein: Here are some questions I ask people, after we've had some time together at the mediation. To an adjuster who's never met the plaintiff before, my first questions are, "What have you learned here today? What's your reaction to the plaintiff? How does that affect your evaluation?" When the defendant gives me a settlement number, I frequently ask, "What message do you think that number sends? What do you think is being telegraphed to you by the number being demanded of you?"
Not that I don't coach and suggest settlement figures, but I like to make the parties work at it--it's their negotiation, not mine.
Meyer: What advice can you give advocates about what to do--or not do--in mediation?
Wagner: I tell them not to be a one-trick pony. Some lawyers' one tactic is to walk out of the room--in one day, they'll walk out 20 times. Or there are the ones who keep announcing that we've reached their client's bottom line. You'll go through 25 bottom lines during the course of the day. I just don't think those are very effective tactics. So when I see someone getting into one of those counterproductive grooves, I talk about one-trick ponies. Some people know how to negotiate only one way, but it helps to be more flexible.
I think the primary thing that advocates need to do is evaluate the mediator. Find out what kind of mediator they have and ask, "What are your ground rules?" Some mediators will say, "I tell the other side everything unless you tell me not to." Others will say, "Everything is confidential unless you give me permission to convey it."
Also, is there a pipeline back to the trial judge or somebody else? Are things that happen in mediation going to be reported to anybody? Is the mediator willing to talk directly to the trial judge? Some are and some aren't. That can be a problem or an opportunity.
Epstein: First, you have to show respect for your opponent, the mediator, the mediation process, and your own client. A negotiator also has to be prepared to be patient throughout what may be a tedious process. The process is really important to clients, particularly to someone who's not sophisticated in the world of mediation, someone who's not been there before or would prefer not to be there, such as the employee in an employment case.
I think it's also important for parties to think about how they can give recognition to underlying issues, things it would be difficult to assign a dollar value to.
Meyer: Here's my short list of worst practices: Refuse to bring the client. Don't tell the client what the process is about when you bring them. When you bring the client, don't let him or her speak. Refuse to allow the client to speak to the opposing client. Refuse to allow the mediator to speak to the client. (I had one mediation in which the plaintiff was the widow of a man who died in a plane crash, and I was told, "You may not approach her or speak to her." She could not engage in any of the negotiation. That lawsuit did not settle.)
More ways to sabotage a mediation: Continually allude to your ability to win at trial and your eagerness to do it. Schedule the mediation for a full day and then announce after an hour that you have to leave in two hours. Insult your opposing counsel--that's always a wonderful tactic. Arrive at the mediation without having thought through what you want. Arrive either without a necessary person or with an obstructive person whose presence is not necessary or is inflammatory.
Meyer: What approaches have you found particularly persuasive? What tactics have you seen advocates use that have backfired? And finally, what role should the client play?
Wagner: I think the low-key approach generally works best, where you have strong advocacy presented in a nonaggressive way. It seems to me that the most experienced mediation advocates adopt that approach.
PowerPoint presentations and day-in-the-life films can backfire, particularly if the party brings it the day of the mediation and insists that it be played there. It really needs to be done in advance.
The role of the client depends on the client. The general counsel of a Fortune 500 company probably will take an active part and will be the main negotiator. An illiterate widow of a railroad worker may take more of a back-seat role.
One of the things that consistently works is candid and frequent communication with the mediator. I like the advocate who comes in and says: This is my case. These are my strong points. These are the problems I have with the case. This is where I'm willing to go. We're approaching it flexibly, but at this point, this is what we're thinking.
Chances are that lawyer's clients will get the result they were hoping for.
Epstein: I have three stories to tell you. One was an impasse in a medical malpractice case involving failure to diagnose breast cancer. That failure substantially increased the patient's likelihood of death. She had been a patient of the defendant physician for years.
When we reached an impasse, I put the parties together without lawyers. With everyone's consent, the physician, the patient, and I met alone, and as the physician turned to the patient, she said, "I'm sorry" and started to cry. The patient started to cry, and said, "That's all I wanted to hear." They hugged each other, and it brought me almost to tears. The impasse was broken and the case settled.
Let me mention another one--a wrongful death case involving a very young child. The parents took the child to the emergency room several times, but the rural health care facility kept sending the child home, saying, "Don't worry, it's just the flu." Ultimately, the child became so dehydrated that the personnel at the health care facility couldn't establish an intravenous line. By the time they got the child from that facility to a larger one, the child died. This happened in a small rural town where people know each other. The hospital staff as well as the parents and the community were all devastated.
At the mediation, my strategy was to put the hospital administrator and the parents in a room together with their attorneys and me. After several sessions, the hospital agreed to design a risk-management program to prevent similar incidents, to provide counseling for the family, and to provide financial remuneration for the wrongful death.
The last story involves an RV fire. Some of the plaintiffs--members of an extended family--were trapped inside a burning RV while other members of the family stood helplessly outside. I met with the plaintiffs before the mediation and discovered that they wanted an opportunity to tell their story to the insurance adjusters and defense attorneys who had not heard from them.
They told the story, which was incredibly dramatic. Can you imagine being inside an RV, knowing that it's burning and that you are likely to die if you stay put, but that the only way to get out is to go through the fire? Well, with the telling of the story, this case settled.
I believe it's important for the plaintiffs in catastrophic injury cases to tell their stories because that's the most important evidence. And if an adjuster has not met the plaintiff, he or she has not had the opportunity to evaluate how a jury will react to the story. As Annette Simmons says in her book The Story Factor, it's the story, not data, that counts.