DO’S AND DON’TS OF MEDIATION
To ensure a successful mediation effort in in all cases and especially employment related matters, Counsel must first be aware of what is sometimes referred to as “the bare necessities”:
1. KNOW YOUR MEDIATOR!
Insist that a conference call be conducted so as to gain insight into the process and procedure attendant to the mediation. Will the mediator require an open session and the making of opening statements? Does the case warrant a full day of discussion, or even more? Do the parties want the mediator to interject himself/herself into the merit/value determination of the case or merely act as a facilitator encouraging discussion amongst and between the parties?
2. PREPARE THE CLIENT!
Mediation is not litigation. Explain the mediation process to the client before the actual hearing. Encourage the client to maintain an optimistic attitude towards settlement. Explain to the client that “Rambo” or “Take it or Leave It” type attitudes are costly, wasteful, and counter-productive to the mediation process. Finally, ensure that the decision makers are present and fully informed as to the strengths & weaknesses of the case.
3. PLAINTIFF’S COUNSEL!
Counsel for plaintiff must come to the mediation in search of compromise, facilitation and a willingness to seek out “what the client can live with,” not “what the client wants.” As trial counsel, be prepared to surrender the usual litigation traits which will cause the mediation to surely fail:
a) the take it or leave it attitude;
b) character assault;
c) threats of victory/defeat;
d) speeches detailing counsel’s past track record;
e) self-indulgence;
f) unreasonable monetary demands;
While any or all of the above might prove productive in an initial client interview, none of these features works to promote a healthy environment at mediation. Generally the plaintiff will follow the lead of counsel – the more reasonable the attorney, the more reasonable the client. Counsel must ensure that plaintiff is prepared for all of the monetary give and take, especially the making of a reasonable in-the-ballpark opening demand. If plaintiff’s counsel has adequately prepared the client, then the mediator will have at least a fighting chance to bring the parties together in settlement.
4. DEFENDANT’S COUNSEL!
Bring the decision maker to the table. There is nothing more frustrating to the mediation process than to spend countless hours reviewing briefs and talking with clients only to have whatever progress has been made set aside or ignored by the faceless, non-present decision maker. How does one expect a case to settle by reason of a five-minute telephone call after ten grueling hours of negotiation? How is the decision maker able to judge credibility when the claimant has never been viewed let alone listened to? How is a good faith effort extended when the decision maker has not had the opportunity to question or argue with the only unbiased participant involved in the process – the mediator!
Finally, defense counsel must be prepared to offer, or at least recommend, options for settlement. Money is not the final frontier. In employment cases for example, many times the issue is anything but money, i.e. re-hire opportunity; promotion or withdrawal of a demotion; elimination of documentation detrimental to plaintiff’s career; retirement considerations; etc. The key for defense counsel is to be creative. Never stop the discussion process. Always maintain an open-minded position and for goodness sake, try to portray a position of reasonableness.
5. PREPARE A MEDIATION BRIEF!
If the case and facts were that simple, mediation would not be warranted. A well-drafted brief not only educates the mediator but allows the mediator time to prepare questions to probe the strengths and weakness of the case. The better prepared the mediator, the better chance the case will settle. In addition to preparing the mediator, a well drafted brief will serve to educate the client. Getting the jump on the weaknesses and strengths of the case helps the client to understand why an open minded attitude and a need for compromise may be in order. Too many times a client appears at mediation with a definitive mind set – I am right, the other side is wrong. Counsel do a service to their client and the mediation process by being first to admit the problems with the case so that the mediator, attorney, and client can have serious discussions as to how the noted problems affect value and merit of the case.
6. LEARN TO LISTEN!
A very bright lady (my wife) once said that lawyers are great talkers but terrible listeners. Listening allows one to gain insight on new facts, issues and perspectives. Besides, venting is good for the soul! One tends to listen better and be more flexible if one’s own statements are conveyed and appreciated by the other side. Most importantly, listening has a tendency to defuse the most emotional and antagonistic of situations.
7. USE THE MEDIATOR!
Why select me, pay me, educate me only to ignore my suggestions and recommendations? The mediator is more than a mere sounding board or a messenger for offers and counter-offers. Remember, the mediator is the only neutral in the room – one whose experience, training, expertise, and desire to resolve the matter goes far in providing a realistic, non-bias assessment of the facts and the law. Unlike a trial judge (whom you attempt to persuade so as to get a favorable decision), the mediator makes no decisions but strives to convince both sides of their relative strengths and weaknesses. Use the mediator to your benefit. Inquire as to his/her opinions and impressions. Even if the mediation is unsuccessful, the information obtained at mediation should prove valuable for later settlement or trial on the merits.
8. DOCUMENT THE SETTLEMENT!
After all that effort, there should be no hesitation to document the intent and agreement of the parties. Settlements are not binding unless reduced to written form and signed by the parties (not counsel). If the agreement is complex and involves numerous sides, consider the use of a tape recording which can be designated as “the writing” and initialed by the parties. Finally, a written agreement serves multiple purposes:
a) the intent of the parties is clearly set forth;
b) the exact terms are agreed upon so that enforcement by the court is available;
c) the written document discourages a change of heart by the parties;
d) the party charged with drafting the final documentation has a road map from which to proceed.
Employment litigation is one of the most emotional, traumatic endeavors a lawyer can undertake. On the one hand, the employee feels a sense of rejection – “I’ve done my best and this is the way you repay me . . . “ In the employee’s eyes, the decision of management cannot be based on merit but must be based on illegal considerations such as race, sex, age, disability, etc. The employer, on the other hand, relies on the trusted input of supervisors and other work-related processes which are meant to ensure that constitutional considerations were not at issue when the employment decision was made. This reliance may also be misplaced. Many times the evidence points just as equally to permissible as well as impermissible factors taken into consideration in the discharge or demotion of the employee. Thus comes the decision to mediate – a decision which requires preparation, the selection of a qualified mediator, an appropriate attitude, and the willingness of all concerned to never say “I give up.”
About the Author ;
Judge Raul A. Ramirez, (Retired) is a full-time Mediator and Arbitrator who specializes in the resolution of complex business, personal injury, civil rights and employment related matters.
To learn more, email: judgeramirez@ramsadr.com