Jury sheets are often the bane of the existence of mediators and mediation participants.  Yet, it is undeniable that they are a valuable tool for use in assessing the possible high and low outcomes of their cases.  However, as a mediator, don’t fall into the trap of thinking that this will be your outcome, and don’t share them with your client unless you plan to show them both sides of the coin.  Jury sheets may be a great way of inducing the potential client to sign a retainer agreement, if you are Mr. Plaintiff Lawyer, and to get him to be responsible for costs of litigation, but they will backfire later when you are trying to negotiate a settlement in your client’s best interest and he reminds you of the jury sheets with the big-number $$$$s in his eyes.

Often these verdict sheets are brought to mediation as a negotiating tool.  Plaintiff’s counsel invariably bring those with high results and defense counsel, the low/defense results.  Big surprise!  Neither of them ever bring those that are in the middle and most likely ranges.  In addition to the obvious, part of the reason for that is that those aren’t often published.  Remember, these sheets are published based on reports of counsel, and you won’t find counsel reporting the great majority of verdicts or settlements, which are usually underwhelming successes.

Just a thought……….

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Be prepared, be prepared, and be prepared!

Mediators are under a duty to prepare for a mediation just as they would for litigation.

The key to a successful mediation is in the preparation.  Being well prepared for mediation does not mean simply calendaring the date, sending a brief and telling your client when and where.  There are a number of different aspects to successful mediation preparation.

  • Get to know your client.  While this sounds simple, it is astounding how many counsel either meet their clients at mediation for the first time or after only a very brief meeting in the initial consultation stage.  Make no assumptions.  It is impossible for you to be trusted advocate or guide for your client in the mediation process if you do not know the client personally.
  • Make sure you have enough information (evidence or other, including financial data) to help the opposing parties understand why you maintain the position you do in the dispute and what factors must be considered in evaluating the dispute for resolution.
  • Present your organized information in a timely manner, at least 10 days prior to the mediation, to opposing parties.   This insures that they have the opportunity to evaluate your position, prepare for mediation and most importantly, come with the appropriate expectations or authority to resolve the dispute.
  • Review information presented by opposing parties both on your own and with your client in order to determine if or how you can refute or undermine its value to their case.  If you don’t have any of this information, request it informally, formally or via noticed motion.  If you haven’t gotten it after all that, it is likely that it either doesn’t exist or won’t be admissible in litigation if it turns up later.
  • Gather all financial data that may be pertinent in wrapping up the dispute.  It is critical for both plaintiffs and defendants to evaluate this prior to mediation so that all parties know going in, how any settlement is likely to be disbursed.  Know what the costs have been to date, the exact amount of any liens, debts or attorney’s fees paid or due to be paid out of the proceeds and any necessary future expenses that stem from the issues in dispute.
  • Create with your client, a complete road map of the dispute resolution process, including not only the mediation but all anticipated steps in the litigation process up to and including trial (and appeal if it is likely in your particular case) and the potential costs in both time and money of each step along the way.
  • Retain the right mediator for your case and client.

Perhaps the most important thing you can do for your client is to take a good hard look at your skills as counsel to determine whether you are able to objectively go through all of the above steps on your own.  Often the best litigators are not the best settlement counsel and see only the end result.  If it is possible that you may be too close to the litigation of the dispute to see all of these things clearly, or you don’t have the time to do it, you should consider retaining a mediation consultant.  A mediation consultant, usually a skilled professional mediator, comes to you with a trained and objective eye, but rather than acting as a neutral, becomes a part of your advocacy team, preparing you, your client and your case for the best mediation possible.

Now, you’re ready for mediation!

Again we are dealing with how to make the best of a bad mediation.  When you realize that perhaps the mediation is “going south”, consider this advice:

  • Speak to the mediator immediately if you recognize of the tell-tale signs or feel any discomfort with the process.  Often an experienced mediator will have recognized those signs long before brought to his/her attention and is already trying to do something about it, whether you notice it or not.
  • Use the session to work with the mediator in preparing your own client for the possibility that mediation may not result in the anticipated resolution and re-evaluate your client’s position on resolution and willingness/ability to go forward through trial.
  • Remember that it is your process, not the mediator’s.  Mediation is voluntary and you are free to terminate or suspend the discussions at any time.  It is often more productive to acknowledge that the time is not right for resolution and take advantage of the face to face meeting to prepare a schedule for necessary discovery (use the mediator as a discovery referee instead) or suggest that the mediation be suspended until the mediator determines that compromise is the goal of all parties.
  • Do not allow the lack of participation or polarization of another party or counsel to cause you to do the same.  Let your client know that this is a process and that if you’re prepared to be reasonable now, you can be reasonable later (though your evaluation or ability to compromise may change based on what occurs in the future).
  • If something has occurred to cause you to lose trust in your mediator and/or his neutrality, stop the discussions and address that issue immediately.  As with counsel, once a mediator agrees to handle a dispute, they must handle it professionally and competently.  If you cannot resolve whatever issue arises in this regard, it’s time to end the session and try another mediator.

Join me and 2 of the great mediators of Mississippi, Jack Dunbar and Larry Latham, in Oxford on Friday, April 13th, 2012 for a 6 hour CLE event “Mastering Mediation Methods 2012”.  The topic of the day is how to handle the mediation that seems to be going south.  This seminar is sponsored by Renee Moore and Ole Miss.  If you want more information you can go to the Ole Miss Continuing Ed website.

 

There are things you can do to avoid a “bad” mediation.

Before the mediation:

  • Don’t be the party walking in unprepared or with your mouth, ears and eyes closed.  If your expectation out of mediation is that the mediator will persuade the other party that you are right and you will get everything you are asking for, you are probably wasting your time and everyone else’s.  It is the job of the mediator to open up discussion between the parties on the issues and guide the parties through the conflict to resolution. It is the job of the advocate to do the persuading, and if you haven’t done it before the mediation through the production of evidence and frank discussion, it’s unlikely that it will happen at mediation.  It’s also unlikely that your new “surprise” evidence is going to get you where you want if your opponent hasn’t been given the opportunity to review and evaluate it.
  • Speak to opposing counsel or unrepresented parties prior to the mediation (or have the mediator do so) to determine what their position will be and what they hope to get out of the mediation.  This discussion should make it fairly obvious whether their goal is to participate in a productive mediation or merely to determine what they are up against.  You should also try to determine (as should your mediator) whether the parties are participating only because the court has given them a deadline and whether it will be a meeting rather than a mediation.  This is not necessarily a bad thing or the wrong reason to meet, in fact, it often can be a very valuable way to get the process of resolution started.  It’s just important to determine in advance so that you do not have inappropriate expectations.
  • Know and trust your mediator.  If you don’t choose your mediator carefully and/or have contact with him/her before the mediation, you can’t have any expectations of the quality of the mediation process until you’ve actually go to the trouble of preparing and appearing with your client at the mediation.  If your mediator doesn’t initiate contact with you prior to the mediation, you do it.  Ask them how they run the process, what they expect of it and of you and what you can expect of them.  A panel mediator (one who is assigned to mediate your dispute by an administrator, often through a court program, rather than one you contact and retain personally) can be a good option, but you are still entitled to an expectation of professionalism and experience in the mediator assigned.

Mediation, whether successful or unsuccessful, is a valuable tool in litigating a case, but a bad mediation, left unresolved, can be an impediment to future settlement and to the future litigation process of the case in general.  Whether a case settles in mediation or not, is not the measure of whether the mediation has been good or bad.

In a good mediation the parties and their counsel are drawn into discussion of the issues, goals, risks and evaluations of the case.  While the basic and most obvious goal of mediation is to resolve the dispute, the critical goal of the mediator is to provide all parties the opportunity to learn enough about their case/dispute, the parties involved, and the litigation process, so that they can make an informed and well-reasoned decision about the future of the dispute.

In a bad mediation the parties may not be provided the opportunity to participate and to be decision makers (even if that decision is merely to defer to counsel), the parties or their counsel aren’t prepared to or refuse to participate in discussions with the mediator, if not with the other participants in the mediation.  A bad mediation can also occur if the mediator loses the trust of one of the parties/counsel, the mediator does not have the experience to sense the conflicts that do (or don’t) exist between the players other than the obvious or has a “settlement is everything” mentality, while failing to see the bigger picture.

An unsuccessful (“bad”) mediation can result in a further polarization of positions and an escalation of the adversary relationship, rather than leading the parties to the recognition that there may be a legally viable position other than their own and the ability for them to begin to think in terms of meeting their needs through compromise.

Do you remember studying metaphors in 8th grade English?  Of course you remember.  You studied similes at the same time and simply got confused.  The rule to remember:  A simile is a comparison relying on like or as.  A metaphor is an equation; a simile is an approximation.  Example:  I behave like a bear in the morning  (simile) vs. I am a bear in the morning (metaphor).

I have found that metaphors can graphically engage a disputant because it does not focus on them — or at least, not literally.  If someone can grasp an apt metaphor, he can often then apply it to his own behavior.  And when he does, he will have received your message without the need of you hitting him on the head with a 2 x 4.  It is a wonderful face-saving device when attempting to illustrate “wrong thinking”.

That being said, metaphors do not come easily to me — or at least, I don’t think they do.  So I decided to find ways to help me develop and adapt metaphors.  There are some rules for this, even though you must actually develop metaphors on the fly in a mediation. But here are the rules:

1. Identify the message you want to send.

2. Come up with a list of metaphors that might send that message.  (For me this is the hard part — I guess I’m not creative enough.  Example:  you have a disputant who is holding to the past and needs to let some fact of the past go in order to obtain resolution.  What metaphors would you use to try to send that message?  “Let it go!” isn’t working.  Often you can reach for literature or current cultural or media icons to find a protagonist who worked through the same failing.  If the disputant can see it in the metaphor, he can often apply it to himself.  This will allow him to reach his own “Aha!” moment without any damage from the 2 x 4.

If you are like me, this will take some practice, but I have found that it is a useful tool in all interpersonal relationships, not just mediation practice.

 

 

brought to you by Laurel Kaufer of Kaufer Mediation, of Calabasas, California, a suburb of LA, and Lydia Quarles, a private mediator in Mississippi.  The vast majority of the posts will be from Laurel, who has been a successful professional mediator for years.  Lydia will chime in occasionally.  Unless otherwise indicated, the content will be provided by Laurel.

We hope you enjoy Mississippi Mediation Moment.

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