Difficult as it may be to believe, Texas lawyers have been using mediation to resolve disputes for more than 25 years. Mediators, during this time period, have developed a broad array of methods of resolving even the most complex problems. Texas lawyers have also received training in mediation advocacy, negotiation, and utilizing various alternative dispute resolution processes. Regrettably, there has been little cross talk between Texas lawyers and Texas mediators about making mediation more effective and successful for the participants and their counsel. This article is intended to identify recent trends and boost practices that make mediation more effective.
Success from the Outset
Most of the time, lawyers have a brief discussion about setting up a mediation, which includes selecting a mutually agreeable mediator and a date for the session. For small or routine cases, this may be enough. But, for cases that involve amounts in controversy over $25,000 or more than two parties, a 15-minute conference call with the mediator and all counsel on the line will go a long way toward setting up the mediation for success. Any or all of the following might be discussed during this conversation:
- How much time should be devoted for the mediation session?
- What documents or discovery need to be exchanged and how far in advance of the mediation session so that a proper evaluation may be made by all sides?
- Who needs to attend the mediation and will those identified be attending in person, by telephone, or by video chat? Are there any co-decision-makers (spouse, parent, minister) who need to be present or available?
- Will a settlement demand be made and, if so, when? Will a response to the demand be made before or during the mediation session?
- Do the parties desire a general or joint session? What might be the possible benefits and liabilities of a joint session and how much time should be devoted to it?
- What settlement dynamics or sensitive issues should the mediator be aware of when thinking about an appropriate process design?
- What preliminary input may the mediator provide in terms of a suitable proposed process design?
The purpose of the brief conference call is to eliminate as many structural barriers as possible before the mediation. If all parties have a hand in determining who will attend the mediation and what the process will look like, and they have the tools to make a proper evaluation, structural issues that may cause unnecessary impasses may be eliminated before the mediation session. Additionally, all sides enter more confident, more prepared, and aware.
Prepare and Consider Exchanging Timely and Effective Mediation Submissions
While the practice in Texas has historically been to send a submission to the mediator in confidence, a new trend to exchange mediation submissions between counsel may go a long way.
In many jurisdictions outside of Texas, counsel customarily do this. The thinking is that exchanging such submissions allows all sides to more fully evaluate the case before the session, saves time at the session because such disclosures have been made, and allows the mediator to use the contents of all submissions freely during every phase of the mediation process.
In instances where counsel exchange mediation submissions, they may also send the mediator a private submission that contains confidential details. Since mediation contemplates both evaluation and re-evaluation of information, exchanging submissions allows all sides to enter the mediation session more prepared and more clear about the nature of the other side’s position.
A timely mediation submission does not mean the night before or the morning of the mediation. Mediators around the state report that submissions are often sent at the last moment. Submissions should be exchanged far enough in advance of the mediation session, ideally three to seven days, so that they may be properly considered. Even if the submissions are not to be exchanged, the mediator would like to review them three to seven days in advance of the session in order to be prepared.
The content of a proper mediation submission should include a concise statement of the factual issues, highlight dispositive legal issues, provide a negotiation history to date, identify barriers to settlement, and identify any sensitive issues or dynamics the mediator should be aware of.
Supplying the mediator with only a copy of an original petition and an answer and excerpts from deposition is not adequate. Effective submissions are typically three to 15 pages and include only those documents that are essential to understanding the case.
Exchange Draft Settlement Documents and Bring Them to Mediation
The new trend of exchanging draft settlement documents in advance of the session is helpful to the mediation process in a number of important ways.
- It identifies all necessary nonmonetary language, i.e., confidentiality, indemnity, released parties, etc. Identifying such words in advance avoids surprises or controversies at the end of a rigorous monetary negotiation.
- It creates early momentum toward settlement.
- Should any of the nonmonetary terms not be agreeable, the mediator will know this in advance and include those matters early in the negotiation.
- In the event of settlement at mediation, the agreement or even the final settlement and dismissal documents are ready for signatures. This avoids delay at the end of a long mediation and eliminates controversy about settlement language later on.
Currently, many counsel are coming to mediation not only with a mediated settlement agreement draft, but also with final settlement, release, and dismissal documents. This practice speeds up the process, reduces chance of disagreements, and expedites payment and the ability to close the file.
Ten-Minute Ex Parte Heads-Up Call to the Mediator
Remember, mediation involves managing many things beyond facts and law. If you are following this article so far, you have had an initial set-up call with the mediator and opposing counsel (15 minutes), you have prepared and exchanged timely mediation submissions (two to three hours), and you have prepared and exchanged draft settlement documents (two to three hours).
Unlike arbitration and trial, in which communication with the trier of fact is forbidden unless all counsel are present or on the telephone, one may communicate with the mediator privately at any time. The ex parte rules apply to arbitration—not mediation.
The heads-up private telephone call to the mediator, which typically takes 10-15 minutes, usually involves a frank and candid discussion of the barriers to settlement, i.e., everything other than the facts and law and what mediators commonly call “dynamics.”
Dynamics might include issues between opposing counsel, issues between an attorney and his or her own client, sensitive or hot-button issues, conflicts between multiple defendants, or whether one side views settlement as a defeat. The call could touch on any nonmonetary issues, such as who is going to make the decisions and which approach counsel would like the mediator to take with his or her client.
These heads-up calls are highly informative and valuable to the mediator. Such topics and disclosures allow the mediator to avoid guesswork and unnecessary inquiry and allow the mediator to develop a plan to manage such issues more effectively. These calls are vital if the emotional scale will be high at the mediation.
Every dispute is different, and for most mediators, their approach is case specific. The heads-up call alerts the mediator to the very dynamics that may make or break settlement.
Develop a Flexible Negotiation Plan
This article is not intended to discuss specific negotiation strategies. Mediators often observe negotiation mistakes that are curable if thought through by counsel in advance. The following is a short list of negotiation tips:
- If you are expecting a check, be certain that the other side has—at least 30 days before the mediation session—all of your medical expenses, wage statements, lien amounts, and any other document or expert reports that support your damages claim.
- New damages information presented for the first time at the mediation almost never will become part of the negotiation calculus.
- Make your demand at least 30 days before the mediation session. The damages set out in your pleadings are not a demand.
- Consider making a credible demand or offer. A credible demand is not a number that the other side would pay and a credible offer is not a number that the other side will accept. Credible means that both sides are leaving adequate room for negotiation and signaling that they are in the same negotiating universe. More typical negotiation usually results in lengthy and frustrating discussions, with bad faith alleged in both rooms.
- Understand your opponent’s negotiation perspective. Knowledge is the greatest asset of any negotiator.
- Enter negotiation with a flexible plan. Flexibility is necessary because mediation sometimes results in re-evaluation. Questioning and input from a respected mediator may impact both sides’ evaluations.
- Avoid words like “always” or “never” as well as viewing the negotiation process as a “waste of time.” Negotiation is a process and sometimes it’s slow and difficult. As long as there is movement, the possibility of resolution exists.
If counsel develops a flexible negotiation plan before the mediation, the chances of resolution are greatly improved.
The Settlement Cake Is Not Always Baked in One Day
Everyone likes it when a case settles at the mediation session and most cases do. But, in many instances, good progress is made even without same-day settlement.
Several things may cause this phenomenon. One side may have exhausted its authority and needs additional client time to re-evaluate its position. The mediation may have uncovered certain matters that require additional discovery before the case may settle. New information may surface at the mediation that requires additional scrutiny.
Regardless of the reason, additional time for evaluation is needed before the case is ready to settle. In many instances, mediators, through telephone follow-up, may resolve the dispute without an additional mediation session. In other instances, parties may elect to have another mediation session for additional face-to-face bargaining. The key point is patience.
Proper Care for Your Mediator
Two things all mediators agree on are that the dispute belongs to the parties (not the mediator) and that they always respect the attorney-client relationship. Another truth is that the parties—not the mediators—settle cases. Mediators provide an environment conducive to settlement and use their skill and techniques to promote settlement
Mediators, if used correctly, can be great helpers for lawyers in a variety of ways. Consider the following perspectives when interacting with a mediator:
- Mediators are excellent sounding boards. With less knowledge of a case compared to counsel, mediators cannot predict ultimate outcomes, but they can let counsel and the parties know how certain things impact them. Counsel may not share a mediator’s worry or concern, but an intermediary’s reaction should be considered.
- Mediators as the traffic cops of negotiation. The negotiations belong to the parties. Mediators have observed negotiation behaviors that doom settlement opportunities, and they know about negotiation techniques that improve settlement opportunities. Mediators commonly excuse themselves from the room as the parties are discussing negotiation options. The proper use of the mediator in a traffic cop role is to get input from the mediator about a negotiation move you are about to make. The mediator may provide insight as to whether the move will hinder or aid settlement. In the end, the parties will determine what move to make. As traffic cop, the mediator’s intent is to keep the negotiations moving.
- Mediator as a process expert. The parties and counsel should be stewards of the settlement outcome. Mediators, in consultation with counsel and the parties, should be viewed as process experts. Every dispute is different and experience teaches us that no one-size-fits-all mediation approach exists. Mediators have seen processes that work and those that have failed. Counsel should take advantage of a mediator’s process expertise.
Through experience, training, and research, lawyer advocates have a more expansive understanding of the mediation process and its potential. Mediators, as process experts and negotiation traffic cops, can offer more options to counsel and parties. Likely, the learning will continue and mediation will evolve.
Eric Galton is a co-founder of the Lakeside Mediation Center in Austin and has mediated over 7,500 disputes. Galton is a past president and knight of the International Academy of Mediators, a Distinguished Credentialed Mediator, and has been licensed to practice law since 1976. He serves as an adjunct professor at Pepperdine School of Law’s Straus Institute.