Page 5 - Alternative Dispute Resolution

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Alternative Dispute Resolution | Monday, March 30, 2015 | S5

By doing work along the lines outlined must come up with a solution.

above, lawyers and clients put themselves That solution often takes the form of a
in a position where they are prepared prop- Too many lawyers overemphasize the importance of learning mediator’s proposal, which represents an
erly for mediation. It is to that subject that about the other side’s position through document production and effort to bridge the gap. The mediator comes
we now turn.
up with a numbers and works with both sides
depositions before they say they can have an informed view. As to figure out what would be a reasonable
The Mediation Itself
timeframe for both sides to respond, which
noted above, proper early case assessment can predict almost all can range from a few minutes to a week. At
Mediation works because, among other the relevant factors affecting settlement at the outset.
the end of that time, both sides then inform
things, both sides have an opportunity to the mediator ex parte whether they accept

present their case before a neutral and have or not. If both sides say yes, there is a deal.
an opportunity to be heard. The salutary If either side says no, there is no deal and
effect of such a process cannot be underes- neither side learns whether the other side Conducting an effective mediation requires with an absence of gratuitous adjectives and
timated. This is true even in cases where the says yes.
proper planning. The importance of a pre- adverbs. Telling the parties at the mediation
parties have been litigating for years or there Mediator’s proposals need to be formu- mediation conference call with the mediator not to be disappointed in their lawyer’s lack
is significant animosity either between coun- lated with great care and will rarely succeed cannot be understated. At such a call, it is of passion at the joint session when they
sel or the clients themselves. Even though without an advocate on each side to advance important to determine starting and stop- are just following the instructions of the
the prospects for settlement appear dim, the acceptance by the party. The mediator must ping times (and learn in particular whether mediator to avoid jury speeches or other
dynamic of mediation usually produces an be patient and not make a proposal until it both sides have the ability and willingness histrionics is also wise.

atmosphere conducive to settlement.
is clear to all involved that there is little or to negotiate into the evening if necessary), The mediator should ask questions of the
There are many benefits to mediating no chance of reaching a resolution in any who will attend the mediation, the nature parties in both joint and individual meetings
sooner rather than later. Too many lawyers other way.
of pre-mediation submissions, and how the designed to point out weaknesses. There is
overemphasize the importance of learning Mediator’s proposals work extraordinarily mediation will begin. It is particularly impor- also real value in asking each side to identify
about the other side’s position through well. In large part, this is reflective of much tant to ascertain that both sides will have the other’s strongest points and how they
document production and depositions before of the dynamic that precedes the mediation representatives with the authority to resolve would address them. Where there are tech-
they say they can have an informed view. As itself. Prior to the mediation, the most senior the matter. While this is not possible if either nical defenses or arguments that might be
noted above, proper early case assessment people within a company may not grant the the plaintiff or the defendant is an individual, analytically correct but might not play well

can predict almost all the relevant factors authority necessary to resolve a case because it is better if the business representative at with a jury, it makes sense to point those
affecting settlement at the outset. Of course, either they believe that everyone always the mediation is not someone whose con- out as well. If certain of the participants in
the enormous cost of discovery, particularly spends the authority they are granted or duct is at issue but rather is responsible for the mediation are more constructive than
in this era of electronic evidence, cannot be they have some hope of achieving what really the economic profit or loss to the corporate others, it may be productive for the media-
underestimated. Once the electronic discov- would be an excellent settlement for them. income statement. Such a representative is tor to convene separate sessions just with
ery spigot is turned on, the costs are over- Once that effort fails, the parties can report much more able to look at the position of his those people.
whelming. Both sides quickly spend so much back to their most senior decision-makers or her side objectively.
If the initial mediation does not result in
money that settlement becomes impossible. that acceptance of the mediator’s proposal Planning proper mediation submissions resolution, the mediator must be persistent
In almost every case, however, the essential is necessary to resolve the matter. At that is also important. Frequently, it works well and willing to engage in appropriate follow-up.

documents, almost all of which are known point, they have no choice but to accept the when submissions are exchanged with the It is frequently the case that the parties either
early on in the case, can fit in a small, one- settlement as barely tolerable and thereby option for an additional ex parte submission need to exchange additional information on
to-two inch binder.
resolve the case.
to the mediator. The benefit of an exchange damages or other aspects of the proof or
Lawyers should never assume that their Parties and their counsel should be think- of statements is that it affords an opportunity simply reflect on what has transpired dur-
clients would oppose early mediation. They ing of the impact their decisions will have for each side to hear directly the arguments ing the mediation session. With the parties’
need to ask, and, if they do so, they may on mediation at every step in the litigation of the other side.
permission, the mediator should not let the
be surprised how often the answer is that process. From the initial risk assessment to That is also one of the main benefits of a settlement efforts die until and unless every
such early mediation is acceptable. Similar- settlement, choices must be made with an eye joint session at the start of the mediation. reasonable path towards compromise has
ly, judges that inquire about the interest in to mediation. With most cases settling, it is While in certain cases, the joint session been pursued.

settlement negotiations at status conferences only common sense to include the possibility can be counterproductive due to the level
should insist that the lawyers consult with of mediation within the litigation strategy. not of animosity on both sides, in many cases Reaching an Agreement
their clients before delivering a response.
only does it increase the chances of a success- it can advance the path towards resolution.
An argument that one hears frequently ful settlement, but it avoids wasting time and Parties can see the strengths of their case, The goal of any settlement negotiation is
in opposition to early mediation is that it money for all involved. By integrating steps along with their weaknesses and the oppor- to reach agreement. Sometimes parties can
will lead the other side to understand all into the litigation process that pave the way tunity to be heard. In order to mitigate the settle without mediation either through the
the “secret” strategies and tactics. There is for mediation, parties and their counsel can risk of tempers flaring at the joint session, it exchange of bids or with careful analysis
little truth to that. Able counsel can figure ensure they are preparing for success at the is wise for the mediator to require that the of their case. However, in many cases, the

out those arguments on their own.
mediation table.
presentations be low-key and matter-of-fact
negotiations can stall, and the mediator