THE ABCs OF EFFECTIVE ADR: Ten Practical Tips for Representing Clients in Mediations

43 La. B.J. 142

Louisiana Bar Journal

August, 1995

Feature

THE ABCS OF EFFECTIVE ADR

Ten Practical Tips for Representing Clients in Mediations

Bobby Marzine Harges

Copyright (c) 1995 by the Louisiana State Bar Association; Bobby Marzine Harges

WESTLAW LAWPRAC INDEX

AMS -- Arbitration/Mediation/Settlement/Other Forms of ADR

Thorough preparation is the key to effective representation of a client in a mediation. Here are 10 practical tips for representing clients who are mediating disputes.

1

Educate Yourself About the Process

Before going to a mediation, the lawyer should know what mediation is and how the process is conducted. Mediation is a dispute resolution process that uses a trained neutral third party - a mediator - to assist the parties in resolving their dispute. Unlike an arbitrator, who has the authority to render a binding decision, the mediator has no power to bind the parties. The function of the mediator is to assist the parties in reaching a settlement.

Most mediations can be completed within one day. During the opening phase of the mediation, known as the joint session, the parties are allowed to make presentations directly to the mediator and to each other. During the joint session, the mediator

and the parties learn more *143 about the case, and the mediator initiates discussion on the critical issues that are identified. Many mediators then meet separately with each party in a private confidential session known as a caucus. During the caucus, the mediator works with each party individually to ascertain the real needs and interests of the parties. The mediator may hold as many caucuses as are necessary to resolve the dispute. Nothing disclosed to the mediator during the caucuses is disclosed to the other party without the consent of the party making the disclosure. The caucuses allow each party to reveal relevant information to the mediator that the party does not want communicated to the other party.

During the caucuses and joint sessions, the mediator uses mediation skills and expertise to assist the parties in exploring the strengths and weaknesses of their cases, to communicate possibilities of movement, to explore alternatives and to narrow the

differences between the parties. This process usually results in settlement.

2

Prepare the Client for the Mediation

Clients familiar with the trial process may be aware that, in a trial, lawyers play a primary role in the examination of witnesses. During the mediation, however, the clients are present and play a major role in the process. Clients need to be educated about their role, the role of the lawyers and the role of the mediator in each stage of the mediation.

To prepare for mediation, the lawyer should meet with the client to discuss in detail the manner, length and substance of the opening presentations, the joint session, the caucus and the closure of the mediation. The lawyer also should explain the negotiation process to the client, that mediation is a structured negotiation and that there will be many offers and counter-offers exchanged at the mediation. Mediation is a give-and-take process where neither party should expect to receive everything that it wants from the other. The objective of the mediation is for the mediator and the parties to find a solution that best serves the interests of all parties to the dispute.

Before the mediation, the lawyer should perform a risk-benefit analysis with the client to evaluate the risks, costs and benefits if the dispute is not resolved at the mediation. Before commencing mediation, the lawyer and client should be familiar with the strengths and weaknesses of the client’s case as well as those of the opposing party. The client should be informed that the mediator will explore those strengths and weaknesses during the mediation.

3

Prepare a Position Paper

Before the mediation, the lawyer should prepare a position paper, generally two to five pages long, and send it to the mediator and, if it is desirable, to the opposing parties. The preparation of the position paper serves several goals. First, this preparation makes the lawyer focus on the case. During the preparation of the position paper, the lawyer should outline the important facts and issues in the case. The lawyer also may consider including responses to claims or defenses of the opposing party.

Second, the position paper educates the mediator about the important facts and issues in the case. Some mediators perform preliminary research before the mediation such as perusing relevant cases and statutes. By receiving the position paper before the mediation, the mediator can come to the mediation knowledgeable and informed. If the position paper is sent to the mediator, the party should advise the mediator whether the contents of the position paper should be kept confidential. Some mediators do not require the preparation of position papers. Those mediators believe that prior knowledge of the facts or issues is not necessary and that they can learn this information at the mediation. Even when the mediator does not require a position paper, one should nonetheless be prepared because its preparation can serve both the client and the lawyer in helping them to assess the case.

Third, the position paper serves to educate opposing parties of the client’s position. Advance consideration of the client’s position by opposing parties causes those parties to take seriously the position espoused in the position paper.

4

Carefully Select the Mediator

All mediators are not created equal. Some mediators give opinions. Other mediators take control of the process and advise the parties as to what they should do. In this mediator’s opinion, those mediators are not mediating - they are acting as non-binding arbitrators. Before selecting a mediator, the lawyer should consider several things:

• Does the lawyer want the mediator to give a point of view?

• How will the mediator conduct the session?

• Are both lawyers and clients expected to make presentations?

• Does the mediator require position papers?

• Does the mediator require the parties to a sign a waiver, consent or confidentiality form?

In selecting a mediator, the lawyer should consider the mediator’s training, experience and credentials. The experience does not necessarily have to come from conducting mediations. Mediation is a relatively new phenomenon and many mediators have several years of experience as lawyers or other professionals. *144 These questions should be asked of the mediator directly or of the administrative agency that administers the mediation.

5

Develop a Mediation Strategy

The lawyer should develop a mediation strategy. The lawyer should consider how the opening presentations will be made. Will the lawyer or client go first? Will the lawyer use visual aids or demonstrative evidence? Will an offer be made during the joint session? To develop a meaningful strategy, the lawyer should be cognizant of the client’s needs, interests and goals. The lawyer should consider how to respond to the presentations and offers of the other side. The lawyer should discuss with the client possible options, solutions or settlement ranges. This is not to suggest that the lawyer should go into the mediation with a “bottom line,” as all parties should remain open-minded and flexible throughout the process.

6

Prepare Opening Statement

Most mediators require both the lawyer and client to make an opening statement. The mediation setting may be the first time that the opposing party has heard a presentation of the client’s position. The opening statement is an opportunity for each party to educate the mediator and the other side of the true interests, goals and objectives. Do not underestimate the importance of the opening statement. Generally, at the mediation, the lawyer will make an opening statement followed by the client’s opening statement. Some lawyers do not allow their clients to make opening statements in the joint session. Rather,

they prefer that the client talk to the mediator during the caucuses. In most cases, it is advisable to allow the client to make an opening statement in the joint session where all parties are present because some cases will not settle until the clients feel they have had their “day in court.” The client must be prepared for, and be given an opportunity to participate meaningfully in, the mediation process.

The lawyer should prepare his or her opening statement as well as work with the client in devising the client’s opening statement. Both opening statements should cover the goals, interests and objectives of the client. Because the rules of evidence do not apply in a mediation, there is great flexibility in fashioning the opening statement.

7

Listen Carefully

The primary goal of the mediator is to help the parties resolve the dispute through the process of negotiation. The lawyer should listen to the mediator and allow the mediator to perform his or her job. Trust the mediator. A good mediator will be neutral and uninterested in seeing one party obtain a better result than the other. Listen to the presentations of the opposing parties. It is not uncommon for parties at a mediation to learn new information that was not learned during the discovery process. Remain open and flexible to this new information. Do not hesitate to discuss this information with the mediator and the client. Remain open to suggestions of the mediator and opposing parties. Remember that mediation is a creative process.

8

Be Patient During the Mediation

The private caucuses allow the mediator to shuttle back and forth between the parties while exchanging offers and proposals. The lawyer should be patient. It takes time for the mediator and opposing parties to understand suggestions and proposals and to consider offers. Do not rush the process. Do not react too quickly to proposals. While one side to a dispute may have considered his or her own position for months, the mediation may be the first time that the opposing parties have considered that position. Mental impasses are reached during many mediations that nevertheless result in settlement. The lawyer and client should be mindful that most mediations will result in settlement and that sufficient time should be set aside to allow the mediation process to work.

9

Ensure Confidentiality

Most mediators begin the mediation by informing the parties that everything said during the mediation is confidential and that nothing will be disclosed to anyone outside the mediation. However, the mediation process may not be entirely confidential. Some states have mechanisms, such as confidentiality statutes, mediation privileges and local court rules, to ensure the confidentiality of the mediation process. Because the rules of all states are different, the lawyer should ask the mediator what mechanisms will be used to insure the confidentiality of the mediation process. Also, the mediation rules of many private *145 providers contain statements of confidentiality. To ensure confidentiality, however, the parties should agree in writing that the process is confidential and that neither party will subpoena the mediator’s notes or records or call the

mediator as a witness at a trial or deposition.

10

Leave the Door Open for Future Negotiations

In the unlikely event that the case does not settle at the mediation, the door should be left open for future discussions. The overwhelming majority of disputes will settle short of trial. Consider scheduling an additional session with the mediator. If the mediation process has been utilized correctly, each side will have a good understanding of the other’s needs, interests and objectives. Another suggestion is to keep the mediator involved in the settlement discussions even though another session is not scheduled. The lawyers may feel more comfortable presenting additional offers to the mediator rather than to the other side. Most mediators will be pleased to remain involved in settlement discussions with the parties until the case settles.

Footnotes

Note 1. Bobby Marzine Harges, a law professor at Loyola University Law School, teaches a course on mediation and arbitration. He is secretary-treasurer of the Louisiana State Bar Association’s Alternative Dispute Resolution Section. A trained mediator and arbitrator, Harges received his BS degree in electrical engineering from Mississippi State University, his JD degree from the University of Mississippi and his LL.M. from Harvard Law School. (Loyola University School of Law, 7214 St. Charles Ave., New

Orleans, La. 70118)