Going to Mediation?
Play Nice
Kimon Manolius
W
hen you want to come to an agreement, do you begin the negotiations by poking the other side in
the eye with a sharp stick?
Of course not, but so many mediations begin in an
ultra-adversarial fashion. We arm ourselves with the
court’s rules to whine about our adversaries’ conduct.
We continue to litigate throughout the process.
Counterproductive? It is a grave disservice to our cli-
ents. Instead, we must drop our weapons and seek commonality. We lawyers expect our mediators to be energetic and creative and to seek areas of mutual interest.
Our clients should expect the same from us.
Initial Thoughts
There is a simple prerequisite—that your client really
wants an agreement. If not, why spend a day in a conference room drinking vending-machine coffee? True, there
are times when you must mediate even though your cli-
“A settlement requires a meeting of the minds.”
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ent has an important policy at stake or wants to send a
message to deter future lawsuits.
But presumably, if your client agrees to mediation, she
would like to see an end to your monthly bills. In that
case, you must become a consensus builder.
The Attitude—“Let’s Get This
Done”
I am not advocating rolling over at mediation. My
concern is that, as trial lawyers, we like to win. But
you do not “win” a mediation. You lose by wasting the
time, focus, and money that should be going to the
litigation effort.
Give on the inconsequential. No one has ever paid
too much on a claim because the session began at
9:30 a.m. instead of 10:00 a.m. Treat your opponent
like a human being and understand that he or she too
has clients—more human beings. Split the mediation
fee. Procedural advantage in the mediation context is
without benefit.
“The minds, however, must be ready to meet.”
be on a separate track. If you are arguing about the
choice of a mediator, the mediation location, or session
procedures, chances are the mediation will not result
in a settlement. And how deflating is it to attend a
voluntary mediation that fails? It is devastating to both
lawyer and client as you return to litigation.
Building Bridges
Litigation, unfortunately, is a negative process. We destroy our opponents’ claims, use adjectives like “without merit,” and discredit damages. Mediation, however, must be a positive process. A settlement requires
a meeting of the minds. The minds, however, must be
ready to meet. Angry minds are not. Our mediation
strategies should reduce anger, seek common ground,
and acknowledge the damage or injury that is alleged.
This effort may begin with the most seemingly inconsequential details and at the earliest possible time when
there is an inkling that both sides want to mediate. At
;
;
Indeed, leading up to mediation, you must shed your
battle armor completely as the mediation strategy must
that moment, there is an opportunity. Meet with your
opposing counsel and ask, “Joe, how do we maximize
our chances to get rid of this matter?” Joe likely will
tell you to bring a lot of settlement authority, but that
misses the point: “Joe, what I mean is, if we really
want to end this, give me three mediators’ names that
you think would be acceptable to both of our clients.”
It is baffling that folks suggest mediators that their
opponents cannot accept. It sends the wrong message.
Putting on Your Best Face
So often lawyers attack their opponents in mediation
joint session. It is the classic poke in the eye. Suggest
that there be no joint session or, at the very least, that
it be limited to introductions or even apologies. Angry plaintiffs or parties do not settle, but they may if
they receive an apology or some acknowledgement.
Premediation outreach is key. Ask your opponent who
should be in the room “from your side.” Of course,
you must follow the court’s rules, but you may bring
client representatives whose attendance is not mandatory. Or you might leave somebody at home whose
presence might be counterproductive. It really is a
matter of respect. For example, in a recent wrongful
death case involving a transit vehicle, I asked, “Joe, I
want to be sensitive to your clients. Do they want the
transit driver there or would they prefer that he stay
home? By the way Joe, our driver is really distraught.”
My opposing counsel thanked me profusely for this
effort and told his clients about it.
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The Right Lawyer
Wrong One
or, at
Least, Not the
If the litigation is extraordinarily contentious, look to
the bullpen. It is no reflection on the trial lawyer.
Consider this scenario. Litigation in a very serious injury case drags on for more than two years. The opposing
lawyers really despise one another due to discovery battles, numerous motions to continue trial, and multiple
requests for sanctions. There is no trust. A prior courtsponsored settlement on the record has fallen through,
exacerbating the distrust. Both parties want to settle the
case. But how?
Change faces. Bring in a new face, such as a lawyer who
has worked with clients like that of your opponent.
Build bridges. Your client might incur additional fees,
but it may be cost effective and the only way to foster a settlement. Seek the smallest agreements on times,
dates, documents, and mediators. Build goodwill. The
new face is your client’s face at mediation. Keep the
prior legal team in the background. Make connections.
Get a lawyer in the room whom your opponents might
trust.
Be Willing to Be the Sacrificial Lamb
At mediation, we lawyers have to be willing to take one
on the chin.
You can apologize. You can acknowledge a loss. You can
say that you regret dragging a defendant through litigation. There is no harm in expressing regret; it is not
weakness but a recognition that your opponents and
their clients are human beings. Sometimes a party is too
angry to agree to anything. The process stalls. What to
do? A creative mediator might send you (alone) into
that party’s room. But what can you do or say? In fact,
you need not do or say anything apart from acknowledging a party’s loss or hardship on behalf of yourself
and your client. The dissipation of anger is essential. A
difficult assignment? Yes, but you just might accelerate
the process and reach agreement.
Keeping Promises or, Better Yet,
Beating Them
Nothing can blow up a mediation more quickly than
an eleventh hour bombshell. Common examples include the fact that a board, whose next meeting is in
2112, must approve the settlement, or that your offer
is contingent on a structured settlement.
If these impediments exist, disclose them well before
the mediation. “Hey, Joe, I am happy we are going
to mediation, but I need you to understand that any
number has to go to my client’s board before we can
finalize the settlement.” Once you make that disclosure, why not give your client another arrow in its
quiver by taking a number to your board in advance?
Then, at mediation, you can offer your number without the need for board approval. You might settle at a
discount and get home before midnight.
In short, the mediation process involves human beings trying to reach agreement. It works a lot better
when we understand the importance of the parties’
mindsets in the process.
Kimon Manolius, who
loves mediation, heads
Hanson Bridgett’s government litigation group
where he does both defense
and plaintiffs’ work.
Learn about BASF’s Mediation Services—
Save time and reduce expenses.
www . sfbar . org / adr / mediation . aspx
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