By Lee Jay Berman
The biggest mistake most attorneys make is not getting all of the value that the mediator has to offer, and for which their client is paying. Many attorneys won’t let the mediator get a word in edgewise, tie their hands with respect to what they can reveal and discuss in the other room, and only want to talk numbers. Then they complain that the process is not making headway or being productive. Getting your money’s worth from your mediator is your job. You have to allow your mediator to work to get everything that you can out of your mediator. Most attorneys never get to see all of the skills a mediator has because they never allow the mediator to utilize their skills.
Remember that experienced mediators have taken and even taught hundreds of hours of classes and workshops in negotiation strategy, and have facilitated hundreds or thousands of negotiations. Seasoned mediators have seen literally thousands of attorneys work their craft. That experience is what you are hiring when you select a mediator to help with your case. But it’s up to you to draw upon that talent and make that mediator work hard for you.
A mediator who thinks that they can coast into their session with a semi-retired, carefree ease. Weed them out early. Expect to work hard to get your case settled, and expect your mediator to work harder. Here are 12 ways to make your mediator work harder for you. If you take advantage of every one of them, you will get much more out of your mediators, your mediations, and your settlements.
1. Voir dire your mediator.
While much has been written about how to select a mediator (mediation experience, references, personality, style and subject matter experience), there is no prohibition on giving a prospective mediator an old fashioned job interview. Attorneys who fail to do their due diligence in selecting their mediator are not putting their clients (or their own) interests first. Unlike arbitration, the mediation process encourages and relies upon ex-parte communication, and offers the opportunity to speak directly to your prospective neutral in advance of selecting them.
Before investing a full day of your time and your client’s, not to mention all of the preparation, consider taking the fullest advantage of this opportunity, both to make the mediator work to give you comfort that you won’t be embarrassed in front of your client by selecting him or her, and also for you to build that critical rapport as a first step in connecting with the mediator, even in advance of their receiving your brief.
In addition to having the opportunity to interview your mediator and survey them regarding their experience and their style to make sure you are choosing the right mediator for this particular client and case. Your time is too valuable, and good clients are too scarce, to risk having a bad experience in mediation. The chances of this can be greatly reduced if you previously voir dire the mediator.
2. Put them to work early and often!
Some mediators will not arrange pre-mediation calls (either with all counsel or individually). If your mediator doesn’t call you for a pre-mediation call, then you can and should call them. Bend their ear. Take advantage of this second opportunity for ex-parte communication. Ask what would be most helpful to include in the brief or during mediation. This is also an opportunity to tell the mediator in a private conversation about any issues you might be experiencing with opposing counsel, your adjuster or your client, and anything else you would like them to know while you have them alone (for a second time). Not only is this fully allowed, mediators encourage it.
3. Brief them well.
Give your mediator a chronology. Don’t get excited and jump to the good parts first. Tell the story the way it happened from start to finish. Give dates and time frames. Then, avoid repeating, avoid bold, italics and exclamation points. Your outrage doesn’t persuade a mediator; your facts must. Most mediators you will be using have seen hundreds of cases, if not over a thousand. If your facts don’t stand on their own, elaborate language and punctuation only draw the mediator’s attention to that. Seasoned mediators can see a case developing. They can see it crescendo, they can judge liability and evaluate damages if they are laid out in an organized fashion, but more importantly, they also understand what you are saying in between the lines. Any mediator who has been mediating for 10-15 years has read thousands of briefs can read very clearly what you are saying (and not saying) about your client, your adversary, opposing counsel, your case, and your settlement posture without you actually having to say it directly.
This is the best reason not to let your first year associate write your mediation brief. Mediators really do form opinions about attorneys, especially ones who are new to the mediator, by their writing prowess. If you had your associate draft your brief and you signed it, you have communicated to the mediator that either you do not write very well, or that this case is not important to you. You undermined your credibility before the mediation has begun. A well crafted brief is more important than your reputation because it is real to the mediator. It is what’s in the mediator’s hands before the mediation. And, if you tell the mediator your confidential thoughts regarding settlement in a private brief, you can shave hours off of your mediation time.
The same goes for telling the mediator about recent settlement discussions. Nothing is a bigger waste of time than getting almost to lunch time only to hear for the first time that the number just put on the table was offered last week in direct settlement, and that the last couple of hours have been a waste of time. Write well and put your mediator to work long before the mediation begins. Work harder to pass along subtle information, prepare your mediator privately, and give them what you need them to know to help you out.
4. Arrive early and meet with the mediator alone.
Get to the mediator’s office early and ask if you can talk with the mediator alone before the formal mediation begins. Ask questions, clue him or her in on client or adjuster issues, and connect if you have not met before. A good handshake and three or four minutes of good conversation starts the day off on the right foot. Then, bring the mediator over to meet your clients. Introduce them and facilitate a short, light conversation between the two of them. This can range from Marge, tell the mediator how your back is feeling today to; turns out you and Jim both went to UCLA. This gives you two brief moments to take the mediator’s temperature (and pulse, if necessary) and let him or her take yours and your clients. Doing this allows everyone to become humanized, look into each other’s eyes, make a little small talk and shed the armor of playing the role of attorney, client and mediator. When the attorney and client are on a more human level with the mediator, it makes the mediator work harder because they cannot simply convey numbers to you. And human nature dictates that it is harder to break bad news to people we like, so in some cases, this can be a negotiating advantage.
5. Enlist them as a strategic partner
Acknowledge your case’s weaknesses, then ask them, What am I missing? What do you see that I am not seeing? Make the mediator work harder by working up the case with you, and then see if you can craft a settlement strategy. Use the mediator’s strengths to find that settlement which makes you and your client happy.
6. Make the mediator respond to your offers first
Use your mediator as a sounding board. You deserve to know what the mediator thinks of each offer before they leave the room to present it (don’t accept politically correct neutral speak here), and how they think the other side will respond to it. Consider their feedback and be flexible to it. Remember, your third, fourth and fifth offers don’t matter! They could be anything, as long as you’re getting the movement you want from the other side. So, if the mediator feels better about one number over another, it is best to let them go with the number they feel good about and sell it sincerely, than to send them with one that they don’t like and have to try to hide their raised eyebrow when they present it.
7. Make them explain your offer completely
Naked offers may sound sexy, but they’re really just bare. A fully dressed offer explains the reasoning behind it, the thinking that went into it, the analysis and the message that is conveyed along with it. You can write this down: The intent of any offer is more important than the content of that offer. It is always more important, with every offer, that the other side knows your intent.
This is why your mediator needs to be highly articulate, expertly nuanced and deeply attentive to you and your client. If they’re not getting your message or seem only interested in your naked offer, then ask to speak to opposing counsel and convey it yourself. You should never feel handicapped by a mediator .
8. Have them be your eyes and ears
If you are in one room for the majority of the day, you do not get to see first hand whether the other side is frustrated, bored, wearing down, boiling over or at the tipping point. In some cases, this information can be more important than the amount of their last offer. The non-verbal cues such as the attitude behind an offer and the flexibility surrounding it will determine how you respond to it as much as the offer itself.
9. Have them give you your choices.
While you may see 2-3 options for responding in a certain circumstance, your mediator may see another option or two that you do not. Ask them to review the available choices as they see them. Remember, if you’re hiring a professional, expect that they have studied negotiation theory, game theory, distributive bargaining and integrative bargaining, and should be expert in architect negotiation that will result in a settlement. Put that expertise to work for you.
One strategy, I’ve seen that really works well, is to discuss your BATNA/WATNA with your mediator. BATNA = Best Alternative to a Negotiated Agreement. WATNA = Worst Alternative to a Negotiated Agreement. He/She can lead you through your options and your thought processes to see what works best for you. This outlines your best options and your worst problems to better illustrate how you need to proceed.
10. Have them tell you when enough is enough.
By late in the day, your mediator has spent many hours watching and gauging the patterns and ability of the other parties and their lawyer(s), feeling the ebb and flow, watching control shift from attorney to client and back again. Your mediator is best equipped to know when the other side is at the end of their rope in the negotiation, and when “no” really means no.
11. Make them work until the end.
There are some mediators who are quitters. When 5:00 comes, they will leave, right in the middle of a mediation, no matter now close a settlement may be. Do not accept this from your mediator. No matter how big a name a mediator has, do not ever hire them again, and make sure that every other advocate you know hears about it if a mediator quits on you just because it’s “clock-out time”.
Some mediators will also quit when a deal is reached – literally sitting down in the far corner of the room and letting counsel, who have opposed each other all day, try to iron out a difficult or complex settlement agreement, or worse, leaving and telling the parties that it is not their job to facilitate the writing of the settlement agreement. It is never the mediator’s job to write the settlement agreement or MOU, given that one would have a hard time suing a mediator for drafting language that disadvantages their client or failed to foresee a problem down the road, it is the mediator’s job to facilitate the discussion until the signatures are all on the page. After all, the settlement agreement is just an extension of the negotiation between the parties.
Many attorneys say that the most important quality in a mediator is they have an iron rear end. One who can sit there as long as it takes to get the job done. Your mediator should be the last one out of the room, when a settlement has been reached, and especially if one has not (yet). Your job may need to be keeping the mediator working until the ink is on the paper. Do not accept less from your mediator.
12. Expect them to work after it’s over.
Any mediator worth their salt will be committed to you until the case is settled. Seasoned mediators see mediation as a process, rather than a day. If the initial mediation session ends, make sure that your mediator continues to work for you. With mediators who are either so busy that they don’t have the time to adequately follow-up or with those who are not as aggressive as you would like, you may have to prompt them to call the other side. There is no shame in calling the mediator if you haven’t heard from him or her for a few days after an unsuccessful mediation and prompting them to call the other side with a routine follow-up call. Ideally, you want your mediator to remain tenacious after a mediation session that didn’t end with a signed settlement agreement, and in some cases, you may have to initiate that conversation.
In these economic times, attorneys are paying more attention to mediator fees. Consider that focusing just on fees is a lot like buying a car based solely based on its price, without ever asking how big the engine is or what options it has. If you are making your mediator work hard in all of these ways, you will get your clients value for every dollar. Now that you have these 12 ways to make them work harder for you, you should have much better results in your mediations.
Please contact us for a consultation to discuss how mediation can help you resolve your dispute.