PRE-SUIT/EARLY MEDIATION

PRE-SUIT/EARLY MEDIATION

ADR.com estimates that eighty three percent of all mediations result in a resolution of the dispute being mediated.  The vast majority of cases, however, are mediated only after months, or sometimes years, of invested time and expense.  In some cases, this is necessary due to a need for significant discovery.  Many times, however, there is little dispute about the basic facts of the case.  In those instances, parties should consider the possible benefits of pre-suit or early mediation.  These benefits include the following.

  1. Cost – Obviously, if a dispute is going to be resolved via mediation, the earlier it is resolved, the less attorney’s fees and costs will be incurred.  In a 2008 survey conducted by the Florida Bar, two-thirds of all responding attorneys charged more than $200 per hour with almost forty percent billing at a rate of $250 or more.  With governmental budgets tightening even the cost of filing a suit has skyrocketed.  As a result, the cost to litigate also continues to grow.
  2. Confidentiality – Once a lawsuit is filed, parties’ disputes become public knowledge.  If a dispute is settled during a pre-suit mediation, however, the entire matter may remain confidential.  For example, in a claim of discrimination brought by a former employee against his former employer, once suit is filed, the former employer is often concerned that any indication of a settlement filed with the court will open the floodgates of litigation from every future terminated employee.  On the converse side, while federal and state laws prohibit retaliating against an individual for filing a claim of discrimination, individuals who have sued past employers are often concerned that possible new employers will avoid hiring them due to the lawsuit.  Accordingly, the former employee’s interests may also be served by the confidentiality of pre-suit mediation.
  3. Time – Anyone who has even been a party to a lawsuit knows that the process can be extremely time consuming.  Time spent meeting with attorneys, responding to discovery, attending depositions takes away from time an individual might be working to earn money or spending with his or her family.  In the case of a corporate party, numerous employees may be involved in the litigation process, further decreasing productivity.
  4. Flexibility of Resolution – As litigation moves forward, parties sometimes become more entrenched in their positions.  Accordingly, early in a dispute, there may be more possible avenues of resolution than simply the payment of money by one party to the other.  In an employment dispute, perhaps the employer will consider rehiring an individual before possible damages become significant.  In a contractual dispute, perhaps the parties can agree to restart work or complete performance of the agreement.

These are just a few of the possible benefits of pre-suit or early mediation that attorneys and clients should consider when disputes arise.

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Preparing Your Client for Mediation

Recently, a third-year student in my class at Barry University School of Law argued that, in preparation for a mediation, it was important for a lawyer and the lawyer’s client to establish the client’s “bottom line” in advance of the mediation.  After debating the issue, I raised the broader question of what steps should be taken to prepare a client for mediation.  This article discusses some thoughts on topics that should be addressed with a client before mediation to increase the possibility that the mediation will succeed.

1.   Contrast the goals of mediation and litigation.

Mediating a case is and sometimes should be difficult for a good trial attorney because the goals of litigation and mediation are quite different.  In addition, the two processes require different legal skills.  If it is difficult for lawyers, it may be just as hard for a client to comprehend the different settings.  It is, therefore, important that clients understand that mediation is not meant to be an adversarial process.  Whereas trial may be all about “winning,” mediation is about resolution which often requires creative problem-solving, consideration of the other party’s interests, evaluation of the potential consequences of not reaching agreement and, in many cases, compromise.  Certainly, a client must be prepared to hear things from the other side with which he/she disagrees without allowing it to affect his/her ability to make decisions.  A client should also know in advance that his/her previously aggressive, “take no prisoners” attorney may follow a different approach during mediation and may even admit to the mediator that there are weaknesses in the client’s case.

2.   Review the mediation process.

While it is good to educate your client about the standard mediation process (mediator’s introduction, parties’ statements, caucus, etc.), it is more important for the client to appreciate that mediation is his/her opportunity to decide how a dispute is to be resolved.  A mediator may, within ethical boundaries, promote evaluative discussion of the case and challenge each party’s position but, unlike a judge or jury, has no power to mandate any resolution.  Additionally, clients must recognize that the remedies that may be granted at trial are limited.  No court can order that an apology be made or a letter of reference written.  With mediation, the possibilities are limited only by the will of the parties.

3.   Explain confidentiality.

A client certainly needs to know what can and cannot be shared after a mediation is finished but perhaps the more important aspect of confidentiality is that the client may speak freely to the mediator.  The client should be encouraged to share (during caucus) his/her concerns about the case and any underlying motivations that may not be readily apparent.

4.   Explain the alternative to a mediated resolution.

If the dispute is not resolved at mediation (or soon thereafter) what will be required of the client?  Has a suit been filed?  Is discovery complete?  When will a trial take place?  Will the client have to pay attorneys’ fees and/or costs going forward?  How much to get through trial?  How much time will the client and his friends and family have to invest in the case?  If the client wins at trial is an appeal likely?  What is the client’s best day in court?  What is the client’s worst day? 

5.   Review bargaining principles and begin managing client expectations.

It is imperative that a client attend mediation with an open mind.  A lawyer does not serve a client well by inflating the client’s expectations prior to a mediation.  The client must be prepared to listen objectively to the other side, the mediator and the client’s counsel and to re-evaluate the case as new information is learned and the pros and cons of the case discussed.  At the same time, it would be naïve to believe that a client did not enter negotiations without some resolution in mind.  The lawyer’s job before mediation is to use his/her experience, knowledge of the case and relationship with the client to attempt to insure that the client attends mediation prepared to listen and evaluate the case and alternatives for settlement.

It is also suggested that lawyers discuss the bargaining process with clients.  Many mediations begin with what is often referred to as “positional bargaining” with each side either making exorbitant demands or offering nominal settlement consideration.  During this stage of the bargaining, parties are more likely to be more emotional, call each other names and express frustration with the other side.  Perhaps one of the parties has to be given an opportunity to vent his/her emotions before true negotiations may begin.  Perhaps the other client’s lawyer has not prepared his/her client as well as you have or believes that it is necessary to “send a signal” to your client by making what everyone knows is an unreasonable offer.  Regardless of the reason, clients should know that mediations may move slowly at first.  Eventually, however, a successful mediator will begin to focus the parties on the strengths and weaknesses of their cases and on the risks and benefits of resolution versus moving forward with the dispute.    

6.   What, if any, additional information does the client need to be able to resolve the dispute?

There are many advantages to early resolution of a dispute.  Beyond saving time, money and inconvenience, early resolution may, for example, permit the parties to repair a damaged relationship.  One cannot, however, expect to successfully mediate if you and the client do not have enough information upon which to base negotiation strategy and make informed decisions.  If information is needed, can it be gathered at the mediation?  Might the parties agree to an informal exchange of documents?  Can mediation occur after written discovery is conducted?  Or is it necessary to complete all discovery before mediating?

7.   Discuss who should attend the mediation?

Individuals who are parties to a dispute must attend a mediation but who is the appropriate person to represent a corporation or other business entity?  Might a person who caused or was involved in the dispute create unnecessary tension or animosity at the mediation or might he/she be helpful in developing a resolution either because of his/her particular knowledge or because an apology may be warranted and beneficial.  What about a family member, friend or other supportive person?  While these individuals may not be permitted to attend if the other side objects, almost every lawyer has likely experienced a mediation when a last minute telephone call delayed or derailed a settlement.  If your client is likely to need someone else’s support or approval, it is preferable to prepare to have them in attendance from the start. 

8.   What information will be presented to the mediator in advance?

Find out what the client wants the mediator to know and provide it to the mediator in time for the mediator to prepare to effectively use it.  In most cases, legal arguments and conclusions about the strength of your case or the weakness of the other party’s while helpful are not going to be decided or agreed to during a mediation.  What is equally helpful is a chronology of events and the evidence upon which it is based.  Also, are there any psychological, emotional or relationship issues of which the mediator should be aware?  Finally, what, if any, information can the mediator share with the other side?  Are there witness statements or other documents that might convince the other side to adopt a more reasonable approach during the mediation. 

A well-prepared client may not only increase the likelihood that mediation will be a success but also decrease the time that it takes for a resolution to be reached.  Lawyers should prepare for mediation as they would prepare for any other important event such as depositions and significant hearings.  Part of that preparation is to insure that clients enter mediation with sufficient knowledge of the case and the mediation process, an appropriate frame of mind and reasonable expectations as to the possible results.

Mark L. Van Valkenburgh