WHAT ARE THE TOP 10 MISTAKES ATTORNEYS MAKE IN MEDIATION?
March 4, 2012
Written By: Erica Garay - Chair of the Alternative Dispute Resolution practice group and a member of the Litigation practice at Meyer, Suozzi, English & Klein, P.C.
1. NOT BEING PREPARED AND/OR NOT USING THE POSITION STATEMENT PROPERLY
Counsel needs to be ready to settle: think in advance of what your demand or offer will be and how you’ll respond to the other side’s position; and think of what can be accomplished through mediation. The position statement is a useful tool to educate the mediator (and, if exchanged, the adversary) as to your views of the case and the strength of your position. However, remember that the mediator is not deciding anything. It doesn’t matter who will win; it doesn’t matter who is right. Rather, the mediator is trained to help the parties find common ground, to look for common interests that can be accomplished through a resolution, and to facilitate a discussion. Also use the mediation statement (that is confidential, for the mediator’s eyes only) to outline obstacles to settlement, emotional or relationship issues that might not ordinarily appear in court pleadings, or other issues that can help the mediator consider and prepare in advance.
Most lawyers can’t see the weaknesses of their positions – or, worse – have advised their clients that their case is so winnable that the party has little or no interest in settling. To make mediation successful, you need to think not just about the strengths of your case, but also its weaknesses, as well as the strengths of your adversary’s case. The neutral mediator is there to be objective, may help you evaluate your case (depending upon the mediation style), but is not there (usually) to tell you if you are right or wrong.
Many lawyers forget to bring documents to the mediation that might help the mediator understand a position better. For example, not bringing the employment file to an employment case does not permit the mediator to review documents in it and give feedback as to their persuasiveness and value to the case.
2. ADVOCATING ISSUES – NOT THINKING INTERESTS TO BE SATISFIED IN RESOLVING A DISPUTE
Most lawyers are guilty of falling in love with their case and the positions they are taking (be it as a claimant or defendant), and with the advice they’ve already given to their clients.
At the mediation, you need to be prepared to hear and discuss the strengths and weaknesses of your case – and to see the weaknesses and strengths of the other side. It is these views that will help your client see what is the best alternative and what is the worst alternative to a negotiated settlement.
If you go into a mediation merely looking for the mediator to vindicate you – i.e., tell you that you are going to win – then you are missing the point of a mediation and the opportunity to fashion a creative settlement. Many lawyers complain that the mediator didn’t understand that his side would prevail. Again, this demonstrates that most lawyers are not used to mediation – it is not a settlement conference with a judge where winning or losing is an important factor.
Think of what your client’s interests are – and what your adversary’s interests are. Is there common ground that can be found that can form the basis of a settlement?
3. NOT BRINGING THE RIGHT PERSON TO THE MEDIATION
It is important that each side send to the mediation someone with knowledge of the facts (or case) and authority to settle. Assuming you can just place a phone call to persons with the authority to pay or accept a payment, is not enough. A mediation is a process. It is therefore important that each side send a representative who has settlement authority and is familiar with the case and is in attendance throughout, so that they are a part of the process and progress – and even see the deadlock. It is important that they be involved and show a commitment to the process. Just being a phone call away, is not going to get the job done.
Consider whether a spouse or parent or close advisor may help a party evaluate a settlement. Should an expert appraiser attend to help explain to a mediator how to properly value the interest being sold? Such a person in attendance can quickly help counsel and the party evaluate offers. If insurance money is involved, a decision maker representative of the insurer is essential.
4. NOT GETTING A SIGNED TERM SHEET AFTER A SETTLEMENT IS REACHED
In New York, oral settlements made outside of court are not enforceable. Therefore, it is imperative in order to have a binding, enforceable settlement, that the parties (and/or counsel) execute a written term sheet, memorandum of understanding or settlement agreement. Such a written, signed document (or a transcript of oral court proceedings that are on the record) can be enforced by a court.
5. NOT PREPARING THEIR CLIENT IN ADVANCE*
*See pdf below for full article.