You have made the prudent choice to select Emge Mediation to co-mediate your upcoming mediation. You have 30 days until the selected date to prepare. So, how do you position your client for the best possible mediation result? Here are a few tips.
The Mediation Brief
Your brief sets the tone and lays the foundation for everything that follows. Do not short-change yourself with a sloppy brief. Unlike many mediators, we will carefully read your brief upon receipt ten days before the mediation with the intent of following up with both a pre-mediation conference call and a set of directed, written questions to get you focused on the tough issues your case faces. Armed with the knowledge that we will do the same for opposing counsel, this is the time to: 1) hit your winning points directly and succinctly; and 2) present counter arguments to the points your opposition is going to make.
We have found that this pre-mediation work significantly reduces the fact-finding stage on mediation day by an average of two hours, reduces misunderstanding between the parties, directs the parties to the truly difficult issues, and allows us to get meaningful numbers on the table well before noon, rather than the typical 2:00 or 3:00 time frame.
Pre-Mediation Conference Call
After we have digested the parties’ written briefs, we will conduct separate conference calls with each party. You can expect three types of questions here. Typically, there are some holes in the briefing that we will seek to fill with additional information. Second, we will address any procedural matters to save time at mediation. These might include: the scope of a release, the interplay of insurance, the time period to implement the settlement. In the case of class actions: attorneys’ fees; cy pres selections; confirmatory discovery; and administration. Finally, you can expect a set of pointed questions based on your opponent’s position. Not only does this help us understand the dueling positions in your case, but it gives you a preview of where your opponent will be focusing their arguments. Often, we will follow this conference call with several written questions for you to discuss with your client and respond to before the start of mediation.
Preparing the Client
Unlike arguing a motion in court, mediation provides the opportunity for your clients to be heard and to participate personally in the process. This is an important aspect of most mediations and you should work with your client to guide them through the types of issues you are comfortable with them addressing themselves. You should remind your client that what they say to the mediators is confidential and cannot be used as evidence at trial if the case does not settle. Your clients are the ones that personally experienced the situation that gave rise to your case and their insight often leads to excellent information for us to use in challenging your opponent. If you have client control issues, the time to address that is in the pre-mediation conference so that we can keep the process moving smoothly on mediation day.
It is also critical to set your client’s expectations for the mediation. It is a rare day when a defendant is not “shocked” by the “outrageous” initial demand and where a plaintiff feels that a defendant “is not taking them seriously.” This is where early mediation begins and your clients should expect that. It is our job as mediators to bring the position of the parties toward a more reasonable range so that your client has to think long and hard about not settling. Trust the process as it is proven to be successful.
Gaming the Mediators
A misguided approach to mediation is to attempt to game the mediators. While we do not expect the parties to provide their absolute final number, even in confidence, it is important to understand that we are there to help move the needle in the other room in ways you have not previously been able to do. Bluffing tactics such as “this is our final offer” or “if they don’t make a significant move, we are walking” have little positive affect on resolving a case and, unfortunately, are overused.
You have many arrows in your quiver and it helps to arm the mediators in a truthful and forthright manner so that these arrows can be used affectively in the other room. It might be a legal issue. Perhaps it is a fact or piece of evidence your opposition has overlooked. Maybe, it is the emotional tug you expect the jury to experience when you present your case. Any such item can affect the value of settlement and when presented correctly, do more for settlement than bluffing and threats. Use the mediators; don’t fight us!
Mediating with Emge Mediation guarantees more pre-mediation workup so that come mediation day, we are better prepared and more efficient. We often hear that the extra steps we take in preparing the parties for the mediation are significant game changers that result in a successful, mediated settlement.