Six Critical Steps for Achieving a Successful Mediation
January, 2005
by Michael S. Errera and Dean S. Rauchwerger
Successful mediation does not happen fortuitously – it takes hard work, a realistic case evaluation, and an appreciation of the value of a negotiated resolution versus the costs and uncertainties of trial.
Critical Step #1: Fully Develop Your Case Theory
Successful positioning for a negotiated resolution begins at the start of a claim - expect you are going to trial. Keep your opponent “on the run” by controlling the momentum – force your opponent to play by your rules and your timetable. At the outset, work with your counsel to develop: (1) pin-pointed written discovery to identify key witnesses and the factual bases of your opponent's case, (2) admission requests that take issues out of contention and lock your opponent into fixed positions, (3) a credible technical case, and (4) deposition admissions that solidify your case theory.
Critical Step #2: Mediation - Timing Is Everything
Is your case ripe for mediation? Consider whether: (1) pending dispositive motions may lead a party to “hold back” during mediation to gain the “upper hand” with a future court ruling, (2) expert discovery has sufficiently progressed, (3) mediation, if too early, may be an attempt to gain “free” discovery – be mindful not to disclose all of your “strategic cards” without a “quid pro quo.”
Critical Step #3: Select An Appropriate Mediation Approach
While the end-game is always the same, mediation methods differ. In facilitative mediation, the mediator takes a passive approach and does not discuss a claim's merits or ultimate success. The parties, in an open discussion, identify their needs for closure and seek to develop common ground. The mediator facilitates dialogue, leading each party to appreciate their opponent's position. In evaluative mediation, the mediator engages in a frank discussion. The mediator expresses opinions on the consequences of failing to settle, including the possible jury verdict or court rulings. “Shuttle diplomacy" is often used, as the mediator meets each party privately while evaluating their case.
Critical Step #4: Mediation Dynamics
Negotiation is like a dance - both parties need to follow the same tune. Accordingly: (1) “Treat others how you would like to be treated” - if you would react negatively to statements like “This is my final offer - take it or leave it” or “See you in Court if you don't take this” be assured your opponent will react similarly; (2) identify a settlement range, rather than a specific dollar amount – flexibility is better than a “line in the sand” position; (3) actively listen - your opponent will offer clues as to their motives and intentions; (4) provide your mediator with a memorandum pointing out your “winning points” and “smoking gun” evidence; (5) take advantage of all opportunities to directly sell your case; (6) justify your settlement position – if you can't support it, you lose negotiation credibility; (7) consider having your experts attend or be available to rebut arguments; (8) court deadlines may create pressure points that increase the costs and risks of going forward; (9) time-value of money –the divide between you and your opponent may be quickly erased by proceeding to trial; and (10) recognize that trial involves risks – anything can happen!
Critical Step #5: Opening The Door For Post-Mediation Resolution
While a claim may not resolve during a mediation session, “lemonade can still be made.” Perspectives can change during mediation. A mediator can cut through the spin and present clients with an objective, fresh look. Mediation may open a divide among multi-parties - one party may break-away from the pack and seek to settle individually. If so, the “herd mentality” is diminished. If you reach settlement with one party, you can negotiate for non-monetary consideration, such as access to employees, assignment of experts, access to work-product, and insight into the plans of the “herd” to which the settling party once belonged.
Critical Step #6: Negotiating For A Win-Win Result
As John F. Kennedy said, “Let us never negotiate out of fear, but never fear to negotiate.” As you embark on obtaining a negotiated resolution, seek to make it a “win-win” outcome. Look to identify all negotiating variables to be placed on the table. The more alternative options you have the better: structured settlement, non-monetary consideration, indemnity, confidentiality, change in conduct or specific performance type of relief, etc.
Recognize that all negotiations take time to cultivate. Most mediated resolutions don't occur till the end of the dance. Be patient. Don't hesitate to extend deadlines if you reach an impasse. Always express your good-faith intentions. Focus on the issues and avoid personalizing your position. Consider the best moment to “split the difference” and whether you prefer your adversary to make that pitch initially. Seek information as to what your counter-part seeks and why. Use facts and evidence as selling points. Seek a “quid-pro-quo” for every concession you make. Identify your bottom-line position and what points are non-negotiable. Use conditions for offering concessions.
Bottom-line:
Successful mediations require a positive outlook, belief in your position, flexibility to compromise and a willingness to reach a “win-win” result. Enjoy the challenge of reaching a negotiated resolution, short of the risks and costs of trial.
Back to CM Report of Recent Decisions (2005v1) 2005 Volume 1 Table of Contents
