INTRODUCTION

Why do some cases settle during mediation, while others do not? Although some cases really do need to be tried, statistics tell us that the vast majority of lawsuits will settle prior to their scheduled trial date. After serving as mediator in over 450 cases, my impressions of the primary causes for impasse are as follow:

1) INABILITY OF THE MEDIATOR TO “CONNECT” WITH A PARTY AND/OR REPRESENTATIVE

2) LACK OF REPRESENTATIVE PREPARATION

3) LACK OF CLIENT PREPARATION

4) COMMUNICATION CONFLICT BETWEEN REPRESENTATIVE AND CLIENT

5) COMMUNICATION CONFLICT BETWEEN REPRESENTATIVES

6) TIMING

7) APPROACH TO THE MEDIATION PROCESS

8) THE CASE IS IN THE “1% CATEGORY” - IT’S NOT GOING TO SETTLE NO MATTER WHAT

What follows is a brief discussion of each of these impediments to settlement, along with a few suggestions as to how they can be addressed by negotiators. Although some of the discussion that follows is academic in nature, the majority is anecdotal, and comes from hands-on, practical experience.

INABILITY OF THE MEDIATOR TO “CONNECT” WITH A PARTY
AND/OR REPRESENTATIVE

This issue is discussed first because it is – or should be – of great concern to every mediator. If I can’t effectively communicate with an attorney or his/her client, it’s probably axiomatic that I will be unable to effectively assist in the negotiation process. Indeed, I may inadvertently do more harm than good. Sometimes these types of communication problems exist because the mediator has simply “missed the boat”. For whatever reason, the mediator has either failed to acquire a meaningful understanding of the conflict, which can lead to attempts at inappropriate interventions, or worse, an inappropriate approach to the entire process (e.g., “evaluative” as opposed to “facilitative” or vice versa). Other times, the lack of connectivity can be caused by inexperience on the mediator’s part or a fundamental lack of knowledge as to the subject matter that forms the basis of the dispute.

There isn’t much a negotiator can do to address a mediator’s lack of experience. You can’t teach him or her how to be an effective mediator – it comes with experience, training, maturity and intuition. Even though there might not be a lot you can do to deal with an inexperienced or ineffective mediator – other than handling all of the negotiations yourself – you do have the ability to significantly assist him or her with the other issues raised.

On those occasions when I felt as if I simply was not connecting with a party or attorney, the root cause was many times a lack of understanding of the conflict before the mediation began. As part of the your preparation process, I strongly urge attorneys to provide some briefing to the mediator at least a few days prior to the session. Obviously, the level of briefing for a “rear-ender” auto case will call for significantly less detail than a case involving complex legal and/or factual matters. I’m not a physician, but if you brief me on the medicine involved in your case before the mediation, we will be in a much better position to get to substantive negotiations early on.

Finally, to the extent that the attorney and client feel comfortable with this approach, tell the mediator what you are looking for in terms of his or her general approach towards the negotiations. Although a number of different styles have emerged over the years, the most common are “evaluative”, where the mediator actually offers opinions during negotiations, and “facilitative”, where the mediator acts more as a guide to keep the discussion headed in the right direction, but offers no opinion or guidance as to any specific issue. Different styles – or combinations of styles – can be employed by the mediator depending upon the context of the negotiations. Pre-mediation briefing as to the facts of the case, along with suggested approaches to the process can go a long way towards facilitating meaningful negotiations during the upcoming mediation session.

LACK OF REPRESENTATIVE PREPARATION

Mediation has become pervasive within the legal community. Indeed, the El Paso Council of Judges has a proposed Local Rule pending before the Supreme Court that will require mediation in all civil cases. Whether you think mediation is appropriate in a given case or not, your level of preparation can be the difference between settlement and impasse. As to your level attorney preparation, I generally recommend that you should spend at least as much time getting ready for mediation as you would for the most important deposition you will take during discovery.   For the client, this means working closely with your attorney with respect to pre-mediation preparation and planning.

As to specific areas of preparation, I recommend the following:

FACTS: For obvious reasons, you should be well-versed on the facts of the case . . . “good” and “bad”. While the purpose of mediation is not to litigate the case, I have found that negotiators who know their case tend to fare better than those who do not.

LAW: Again, litigating the case during mediation will typically not lead to settlement. That being said, any legal issues in dispute – or potentially in dispute – are bound to come up during the negotiating process. It never hurts, and usually helps, to have a firm grasp of the law applicable to your case – especially in areas of disagreement.

NUMBERS: Attorney and client need to know when to walk away from the table. Although the mediator’s role is to assist the parties in making wise decisions in the face of uncertainty, it is still critical for the negotiator to have as good a “feel” as possible for the following numbers before the mediation begins.  Best estimates of the following should be attempted during preparation, understanding that they are just that: estimates.  I.e., even your own numbers can and sometimes do change during the negotiation process.

Your Insult Zone: The range of offers that the client will not accept (or pay) under virtually any circumstance.

Your Target Zone: The range of offers that you believe would represent the best case scenario in the context of a negotiated settlement.

Your Reserve: The lowest number that the client will accept, or the highest that s/he will pay to settle the case.

Best Alternative to a Negotiated Settlement (BATNA): If you don’t settle the case, what is your realistic best case outcome at court, taking into consideration attorney fees, costs, etc.

Worst Alternative to a Negotiated Settlement (WATNA): If you don’t settle, what is the worst case outcome at court, including attorney fees, costs, etc.

Probable Alternative to a Negotiated Settlement (PATNA): If you don’t settle, what is the probable outcome if the case goes to trial, taking into account attorney fees, costs, etc.

In addition to the foregoing, you should also attempt to estimate the other party’s numbers as best as you can. This is a difficult process but well worth the effort. Although you may not be able to determine these figures with precision, going through the process puts you in the other parties’ shoes . . . an important component to the negotiation process.

LACK OF CLIENT PREPARATION

After initial preparation, it is critical for the attorney to meet with the client to provide  a professional assessment of the case and how the negotiations should be approached. First, meeting with the client after the attorney's initial assessment will give him or her time to reflect prior to the commencement of negotiations. Second, it is important for the attorney to listen to the client’s concerns and expectations as they can and usually do have an impact on the numbers discussed above. Third, attorney assessment of the case can have a tempering effect on the client’s expectations, which in turn will mitigate his or her shock from hearing the other side’s offers (and the mediator’s comments) at the mediation.

I strongly urge attorneys to avoid the temptation of waiting until the mediation to provide the client with your objective evaluation of strengths and weaknesses. Such an approach can overwhelm the client, and make it difficult to have an objective exchange regarding pros and cons. Experience teaches that attorneys and/or their clients can over or under value of their case if they wait until the last minute to discuss.  This is not to say that clients should sit back and wait for something to happen.  Ultimately, it's your case.  Make arrangements to meet with counsel before the mediation so that you can be better prepared for the negotiations that lie ahead.

COMMUNICATION CONFLICT BETWEEN REPRESENTATIVE AND CLIENT

Communication conflicts between clients and representatives can have a devastating effect on negotiations and typically come in two forms: first, there has been limited or no communication between the two leading up to the mediation; and second, the representative and his/her client simply don’t “connect” regardless of the amount of communications that occur between them.

The first issue, limited communication between representative and client leading up to the mediation, can typically be cured by the representative having first thoroughly prepared for the upcoming mediation and meeting with the client beforehand for the dual purpose of providing him or her with your analysis and getting an update from the client as to concerns and expectations. As noted above, allowing the client to come to the mediation “cold” can potentially lead to disastrous results. My advice is simply to engage the client in the process well before the mediation, as positive results typically follow.

The second issue is more difficult to address because it suggests a significant breakdown in the ability of the representative and client to effectively communicate regardless of the quantity of discussions or correspondence between the two. Although a total lack of communication is rare, it is not uncommon for attorneys and their clients to have some degree of dis-connect. The mediation process can go a long way towards bridging communication gaps between clients and their representatives. Clients not only have the opportunity to discuss the conflict with opposing parties and their counsel, but also interact with a disinterested third party – the mediator. Experience teaches that differing methods of communication, combined with differing views of the conflict, can go a long way towards assisting attorneys and their clients in working towards meaningful resolution.

COMMUNICATION CONFLICT BETWEEN REPRESENTATIVES

Dealing with communication conflicts between representatives that are based upon their history of dealing with each other is beyond the scope of this paper. Rather, this section deals with a more common occurrence – and one that is much easier to address than deep-seeded relationship problems.

Many times representatives enter the mediation with differing views of the facts of the case, as well as applicable law. It’s not unusual for advocates to approach cases from different perspectives. Indeed, it’s expected. That being said, it’s one thing to have disagreements based upon objective criteria, and quite another to simply be out in left field due to a lack of preparation.

Educate your counterpart before the mediation. I realize that this approach is counter-intuitive, and I do not suggest that you should tip your hand as to strategic matters. However, a phone call or letter before the mediation to review your client’s positions on the law and facts of the case that will be discussed during opening statements anyway can go a long way towards getting opposing counsel to start focusing on his or her case. It also may allow the attorneys to reach consensus on what should be agreed upon facts and law prior to the mediation, thus making the negotiations more efficient. Although examples are legion, the more common appear to be medical treatment and bills and lost wage claims in P.I. cases, and basic inventories in divorces.

COMMUNICATION CONFLICT BETWEEN PARTIES

Although cases can and do settle in the absence of rapport and trust between parties, experience teaches that there is an inverse correlation between the level of distrust and the chances for a successful mediation session.  This is especially true in "high conflict" situations such as divorce/custody, professional negligence and breach of contract cases.  Even in cases where a high level of distrust and/or acrimony exist, mediation still provides great opportunity for resolution in two major respects:

First, mediation is designed to provide the parties with a unique opportunity to explore areas of common concern and common ground.  In the context of litigation, it many times is the only chance for the parties to have an open and meaningful exchange of information in an effort to reach a settlement that can provide closure on some, most or even all of the areas of conflict.  Can it repair "broken" relationships?  Sometimes yes, sometimes no . . . one thing is for sure however: Ending the litigation through a process that allows the parties to have control over the terms of their agreement puts a halt to the destructive litigation process, and may also set the stage for future dialogue on the deeper basis of the parties' relationship and future dealings with each other.  In short, parties have the opportunity to receive significant value from the process . . . It's simply a matter of what you are willing to invest.

Second, and on a more superficial level, mediation can be used simply as a means to the end of risk management.  Even if the parties can not or will not approach the process as a precursor to a better future relationship, they can still view the negotiation process as a vehicle to put an end to the many risks associated with the courthouse.  Many times this approach alone - using the mediation just to end the litigation - can set the stage for future dialogue, which in turn may lead to better relationships.

TIMING

Picking the best general time frame to mediate can have a significant bearing on the outcome. Negotiating too early – before sufficient information has been developed – can put negotiators in difficult positions. Obviously, an attorney can’t give your client informed advice if you are not well informed yourself. With rare exception, I generally suggest that mediation not move forward until at least the first round of written discovery has been exchanged.  From the client's perspective, it is critical that you provide your attorney with full disclosure of all facts relevant to the case.  As a former trial lawyer and judge, I can assure you that there is nothing more devastating to a case than for an attorney to learn of a "harmful" fact from another party or witness at a deposition, trail or at mediation.

I have typically found that you can not negotiate too late in the litigation process. It can happen however, especially in high conflict cases where the parties (and sometimes their attorneys) have polarized and only communicate via certified mail and at hearings.

Of course, the quantity and quality of discovery is case specific, and this is where good communication plays an important role. Parties and their attorneys should try to keep each other well informed as the case develops. The more s/he knows about the case – good and bad – as information comes in, the better the opportunity for settlement during mediation. Obviously, it is also important for attorneys to discuss timing with opposing counsel. Working together to arrive at a mediation date that seems to make sense for all concerned is not only an efficient way to schedule, but also gets the representatives used to working in a collaborative manner . . . an approach that can serve your clients well during actual negotiations.

APPROACH TO THE MEDIATION PROCESS

As with timing, approach to the negotiations is to some degree case-specific. Even though there is no one-size-fits-all negotiating style, attorneys and their clients should avoid the extremes of being too hard or too soft. Beginning the negotiations with aggressive statements can lead to almost immediate polarization. When pushed, our instinctive response is to push back. This is especially true in cases where discussions between representatives leading up to the mediation have been cordial and non-competitive. In those cases, the other party/attorney may be shocked by an opining position that appears to be overly aggressive or competitive. If this occurs, polarization may follow, which in turn will make it difficult (if not impossible) for the mediator to get the negotiations on the right track.

An overly passive approach can be just as harmful to the process as the other extreme. A passive approach, which although rare, does occur, can lead opposing counsel or his/her client to the conclusion that you are either: a) unprepared; or b) prepared, but have formed a belief that you have a weak case. Based upon personal observation, the most effective negotiators make it clear from the start that although they are participating in the negotiations in an effort to get the matter resolved, they are not afraid to litigate the case should settlement be impossible.

Even if the case doesn’t settle during the actual mediation session, there will be other opportunities to work something out prior to trial. Because of the opportunity for post-mediation / pre-trial settlement, I recommend the following:

1) Never make your final offer unless you know that it will be accepted by the other party. A rejected final offer will impasse the mediation and also paint you into a corner with respect to future discussions. The closest you should go to violating this rule is to inform the other party that you have reached your authority limit, and although you don’t think any more will be forthcoming, you are still willing to keep the door open for future discussions.

2) Don’t leave the mediation on a sour note. Tempers can and do flair during negotiations. Although best avoided, anger is not always an inappropriate response. By way of example, I have found that highly personal attacks on parties or their counsel are rare. In those instances however, it would certainly be appropriate for you to respond with indignation . . . even mild anger. Except in the rarest of circumstances however, try to leave the mediation on a positive note. Keep the door open for further discussions. The case will be a lot easier to settle if you do.

3) Keep the mediator informed and involved after the mediation. Ask the mediator to continue working on the case, even if only telephonically. I have worked on a number of complex multi-party cases where it became evident to all concerned that we would not be able to reach a final settlement during the actual mediation session. All were ultimately settled because the parties and their attorneys kept the doors open, and to a lesser extent, because they kept me involved in the dialogue.

Another issue related to both timing and approach deals with the speed in which the parties and attorneys enter into substantive negotiations. We have an instinctive tendency to “get to business” as quickly as possible. While this approach is culturally acceptable, taking the time to get to know the participants a bit before beginning the negotiations can be a big help in building rapport, which in turn is many times a key building-block of successful negotiations. Also, sometimes reaching a settlement too quickly can leave one or both parties feeling as if they “left something on the table”. While needlessly dragging the negotiations on for too long can also create problems, settling too quickly can, and sometime does, leave the participants with feelings of discontent. Give the process time to work.

THE CASE IS IN THE “1% CATEGORY”: A
IT’S NOT GOING TO SETTLE NO MATTER WHAT

If you think you your case will be difficult to settle, it probably will be. But the same is not necessarily true for a case you might place in the “impossible” category. I’ve seen too many so-called “impossible” cases settle during mediation to believe otherwise.

Some cases really do need to be tried. The trick is figuring out if yours really does belong in this statistically small (make that very small) category. The point is obvious: no matter how bad the situation may appear, difficult cases resolve all the time. If they didn’t, there would be a lot of mediators looking for alternate careers.