Preparation vs. Perspiration

The Marin Lawyer, 2010

By Barri Kaplan Bonapart

Many articles have been written on the subject of effective advocacy during the mediation process. What is missing from most of those articles is how the advocate can influence the process before ever setting foot in the room. In keeping with the adage "success is 90% preparation, 10% perspiration", this article is to fill the "preparation" gap.

These days, with everyone and their sister calling themselves a mediator, it can be a daunting task trying to figure out, much less agree upon, the "right" mediator for the case. Although training and experience are certainly important prerequisites, one of the most important criteria is for the other side to have "buy in." If the defendant and/or his attorney do not trust the neutral because she is someone you "hand picked" then it doesn't matter how good they are. I will often ask the defense if they would like to provide a list of three or four mediators that would be acceptable to them knowing that there will probably be at least one on the list who will have the requisite skill set to handle the dispute. If I am not already familiar with the people on their short list, then I interview the candidates and follow up by checking their references; e.g., attorneys who have used the mediator in similar disputes. Indeed, I have found some of the best mediators by accepting one proposed by the other side.

Keep in mind, however, that a mediator who might be great for one kind of a dispute might be disastrous in another. For example, the mediator who the claims adjustor likes for handling one-time injury or damage claims (e.g. an auto accident) may be completely ineffective in a dispute involving ongoing relationships such as with neighbor disputes. That is where the interview and reference checking can make the difference.

No, this is not a typo. Whether you have worked with this mediator a dozen times or never before, do not assume that the approach that the mediator will be taking will be the right one for the dynamics of your particular dispute and the personalities involved. Request a pre-mediation conference call; either separately or jointly, depending on the level of communication you have with opposing counsel. This is the time to raise any delicate issues such as difficult personalities, tricky legal issues, or other potential obstacles to settlement. It is also the time to discuss whether or when a joint session makes sense and how it should be run.

You definitely want to raise the issue of who will be present from each side especially when it comes to experts and necessary decision makers such as parties and adjustors with full authority. Finally, if the dispute involves issues concerning real property or other places or things for which a site visit might be helpful, you should discuss in advance how that is best choreographed; e.g., who should be present, when it should occur, and how it should be conducted.

I know many lawyers who believe it is clever to hide the ball. I am not one of those lawyers. If I have compelling evidence, I want to make sure my opponent has it early enough in the process to be able to properly evaluate it, and, if necessary address it. I often obtain and produce expert reports even prior to filing an action as an invitation to pre-litigation mediation. If the defense is learning important facts or theories for the first time at meditation, you have only yourself to blame if the matter is undervalued by your opponent.

Attorneys often forget that, for most clients, the world we live in as lawyers is as strange and daunting as the surface of the moon. We think that if we just "show up" at the mediation with our clients, the mediator will "resolve" our case and we can move on to the next matter. The danger of lack of preparation and forethought is less-than-satisfactory results for our clients who, even if their matter settles", may walk away feeling bullied or victimized. The way to avoid this is through education and preparation.

I always schedule a pre-mediation preparation session where I explain to the clients in detail the mediation process including what it can and cannot do. I explain the difference in the roles we play as advocates engaged in a collaborative versus adversarial process. For example, I warn them not to be shocked or alarmed when they hear me "thank" the other side for agreeing to come to the table and work together to solve this mutual problem (even though they probably came kicking and screaming and only to avoid being admonished by the court).

But perhaps the most important work is coaching the clients how to speak their truth in a way that the other side can hear. I have them rehearse what they are going to say, keeping it confined to a few minutes describing "what this dispute means to me" while staying away from blame or accusation. I even tell them if there is something they can own or for which they can take responsibility (e.g., "I am sorry for my failure to do a better job communicating about this misunderstanding"), then it is appropriate for them to fall on their sword as part of their presentation.

Warning: most clients are very resistant to acknowledging fault in a dispute where they already feel victimized. But, I explain, even though the thought of "apologizing" may induce nausea, it is important to the process for two reasons: first, acknowledging responsibility will not be expected by the other side and can open their ears so they can hear the rest of what it is the client wants them to hear; second, it will lay the ground work for a more open and honest conversation that will have the optimal chance for achieving resolution. At a minimum, acknowledging responsibility for their part gives the client credibility and sympathy which the other lawyer (and adjustor where appropriate) will assess as part of the overall settlement value.

Finally, I advise my clients that mediation is a process. As a result, it is important not to come with a preconceived "line in the sand." We may learn things during the process the causes us to reevaluate our position. This could mean that we learn things that suggest our claim may not be worth as much as we thought. Or, we may learn things that convince us our claim is worth far more than we thought.

This last piece goes to the issue of managing expectations. What makes for a satisfied client is not the bottom line result, but how they got there. You can achieve an objectively fantastic result for clients, but if they did not feel like they were part of the process or if they began the process with artificially high expectations, they will not be happy with the result. As I often advise my clients, "it is not what you do, but how you do it."

Reprinted with permission from The Marin Lawyer. © 2010.