Mediation Policy & Procedures
Most lawyers are well aware that mediation resolves 70-80% more legal disputes than trial or arbitration, while avoiding the time and money costs, and loss of case control.
A mediation session should promote an informal yet sincere exchange, a "safe area" where discussions can be frank and confidential, unobserved by a court or jury. Details and negotiating positions in mediations are inadmissible as evidence or even comment in court, in California and most other jurisdictions.
Confidentiality. My role as mediator is not to decide the case but to explore ways to make a mutually acceptable settlement possible. This requires that I not relay to an opposing party, those arguments that a party does not wish them to hear. Trust is essential for a party to state their arguments, both confidential and non-confidential, to the mediator.
Exchanging Documents
A legal brief or memorandum of law is not required for mediations, but I strongly encourage the parties to submit briefs at least 3-4 days before a scheduled mediation, which makes the process more efficient by familiarizing me with the dispute before we begin. Briefs arel deemed confidential unless the party consents that their brief be shared with the opposing side(s).
Uploading Large Files
If you have a mediation brief accompanied by large exhibits, advise us and we can decide if it's necessary to make a portal available to upload them. If the submission is voluminous, those should be submitted no later than 3-4 days before the mediation.
Results Trump Agendas
In my years participating in mediations it would sometimes become apparent that a party's agenda was not to seek an early resolution, but to discover the opponent's bargaining position and key evidence, to gain an advantage as the trial date approaches.
I have also seen mediations proposed for the purpose of getting a trial date postponed, due to behind the scenes issues such as unfinished expert reviews or incomplete client discussions.
A mediator's role, however, is not to police a party's agenda. Every dispute, no matter the motivation, involves the potential uncertainty, complexity and anxiety that forms around approaching trial dates or a threatened filing of suit, plus the prospects of losing a case at trial, client disappointment and unrecoverable expense. So the parties always need to approach mediation with sincere intent.
Arguments over facts and law should never distract from what should be the central focus of a mediation: What a jury will most likely do.
How to Make Settlement Less Likely
Human interactions vary under stress. Some issues occur often enough at mediation to deserve comments, such as:
* Good Faith Issues. Presenting surprise evidence at a mediation can shake an adversary loose from resistance, but it can have the opposite effect of antagonizing them. If you reveal previously undisclosed evidence during the mediation, good faith would merit offering a reasonable explanation for the late disclosure, i.e., that the evidence only just became known to you, or that you didn't plan to disclose it but doing so is justified to address a misunderstanding. A corollary is the tactic of making a very high settlement demand not previously stated as we start. Obviously I don't reject any negotiating strategy, but the chances of resolving a dispute improve in an atmosphere of good faith.
* Issues of Law. An experienced mediator can be useful where the parties disagree on legal issues -- not to decide the issue but to counsel each side about the pros and cons. In the end, the issue is not who has the correct interpretation of the law, but whether a settlement can be reached.
* Time Factor. Sometimes a trial date is so close that there is little time to prepare fully to mediate. In that case the parties can still meet & confer to streamline their presentation, to perhaps list the points they agree on going in, or to approach the court and ask to postpone the trial date to enable an already scheduled later mediation.
* Personalities. The pressures of litigation can provoke overly aggressive or hasty comments between adversaries. No one is perfect, but it helps to be mindful that mediation works best in the spirit of arm's-length collaboration and respect. When anger rears its head, just remember the antidote: Reasonableness, the very principle that most juries are instructed to use. This is made easier through the use of separate 'rooms' for the parties.
* Litigation Myths. Over many litigations I have noticed two particular views, which I call mythologies, that adversaries have sometimes projected, spoken or unspoken, onto each other:
1. Insurance companies avoid paying claims in order to earn interest on the funds.
For the record, I have never heard a claimsperson or claims officer make such a comment, presumably because insurance companies deal with larger overall sums than the potential interest on an individual claim. A claims division's main concern is whether they are accurately estimating the potential payout that may be needed at settlement or trial.
2. Plaintiffs coach their clients to exaggerate their claims.
I have had many clients as a plaintiff attorney, and many years ago I watched an attorney insist to an extremely uncomfortable client that he testify to injuries he didn't really have, or to costs he did not truly incur. Clients are generally aware of the huge risk of getting caught testifying falsely under oath.