Active Preparation Leads to Better Mediation Results

by Foley & Lardner LLP

After have deciding to mediate and selecting a mediator, each litigants’ focus should shift to preparation. In our experience, mediation results improve significantly when the parties, not just the attorneys, come prepared for mediation. This post offers 7 pointers for parties to follow when preparing for mediation with their lawyers.

  1. Participate in Drafting the Mediation Statement. The written mediation statement primarily serves to inform the mediator of the issues in the case, the parties’ respective positions, and the real points of contention. Because the parties usually have a deeper understanding of the factual and economic issues in a case, the parties themselves need to be involved in the process of finalizing the mediation statement. The parties may suggest important points, such as a crucial missing fact or a tweak based on a business goal.
  2. Analyze the Parties’ Leverage. Depending on a variety of factors, such as the relative strength of the parties’ positions or time pressures facing a particular party, the parties may possess different types or amounts of leverage. Spend some time speaking with counsel regarding which party has the upper hand, how, and why.
  3. Brainstorm in the Abstract and Specific. In thinking about resolutions to propose at mediation, think strategically. And be specific. Considering abstract concepts is helpful, but do not stop there. Think about how specific terms may get fleshed out in the ultimate agreement.

For example, if a manufacturer is in a dispute with the designer of its Customer Relationship Management (“CRM”) system, the manufacturer may be willing to continue using the CRM if the software vendor will agree to provide technical support for a period of time. That concept may be a crucial component of a mutually agreeable settlement, but the manufacturer should consider the necessary details – how many months or years would the technical support be needed, how many hours per week or month must the designer be willing to commit to, who at the vendor will provide the technical support, and will the technical support include adding features or providing updates?

Considering the details before mediation will highlight potential problems and increase the likelihood of reaching a concrete mediation settlement.

  1. Think Creatively. Resolving a case before trial, whether by traditional settlement or through mediation, has many benefits, such as avoiding potential liability from an adverse result, avoiding additional attorneys’ fees and litigation costs, ceasing interruptions of employees’ and leadership’s time, and relieving the emotional stress created by litigation. Further, the American justice system does not often render “compromise” results. Mediation, on the other hand, empowers the parties to employ self-determination. For example, in a dispute with a supplier regarding the sale of goods, the parties could agree to a settlement that includes discounts, premiums or other accommodations in future transactions between the parties. A judge or jury could not award such a remedy.
  2. Consider the Other Side’s Perspective. As the old saying goes, “you cannot understand another until you walk a mile in his or her shoes.” Ask: if the opposing party performs this same analysis, what leverage will the other side perceive and what potential resolutions might be suggested? Sticking points and pitfalls may become clear. For example, in a warranty dispute, the seller may be much more interested in the message sent to other buyers by resolving the case at hand than the actual amount of money paid for the settlement.
  3. Set (Compromise) Goals Before Mediation. Litigants should approach mediation and their strategy with a goal in mind. In the adversarial process, most want to “win.” But one must ask, “What does winning mean in the context of mediation?” Mediation is not a trial, and if one approaches mediation with the goal of “winning” by getting everything available at trial, mediation almost certainly will not be successful. In other words, parties should seek to resolve the case on terms that are acceptable but not perfect.
  4. Communicate with Counsel. The lawyers almost certainly have been through mediation more times than the parties, and they can offer insight into the legal aspects of the case at play. Hopefully, the lawyer may also serve as a business counselor based on his or her experience, helping to identify business goals and mediation tactics to align with those goals. Most importantly, if the lawyer does not fully understand the client’s goals, he or she may utilize a strategy that is not best suited for reaching the desired outcomes.

The key takeaway is that the parties should work closely with their lawyers in preparing for mediation. The foregoing are not step-by-step directions, but rather an outline to use in formulating the appropriate mediation strategy and goals. Stay tuned for our next post, discussing tips for the day of mediation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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