WHEN IS IT TIME TO ASK FOR A MEDIATOR?

By Andrew R. Wiener


Mediation is a more fruitful process when an attorney has already undertaken the effort described below, on his or her own. If no common ground is perceived even after these efforts, it is time to bring in a mediator.

1. Establish a relationship of trust with opposing counsel

There was a time when acknowledging potential merit in an adversary’s argument was perceived as weakness and thus conferred an adverse tactical advantage. That time has long passed. Making sure that your adversary knows that you understand his or her position improves communication and opens the door to reflection and re-evaluation. At the outset of the case:

– Introduce yourself to opposing counsel (in person, when practical to do so);

– Do not exaggerate your client’s initial position;

– Voice your understanding of the factual and legal bases of your adversary’s position;

– Ascertain and define the dispute’s uncertainties with opposing counsel, with the goal of resolving them informally;

– Fulfill your promises. If you promise to provide information in the hope that it will persuade your adversary to change position, or simply because your adversary requested it, follow through. A high standard of trust and professionalism is key to any future dialogue.

2. Tolling agreements

Attempt to enter into a standard tolling agreement when deadlines may impact informal discussions (e.g., statutes of limitations), which will:

– Avoid any party’s perception of intent to delay resolution;

– Retain settlement possibilties affected by economic factors; and

– Provide time for all counsel to complete a deeper up-front analysis of the case so as to provide his or her client with a better understanding of the economics of the case and chances of loss or success on the merits. It is important to limit the number of assumptions when proceeding to press a claim.

3. Attempt to agree on what the parties do not know

Mediation is commonly hampered by the parties' failure to address solvable factual uncertainties, prior to the mediation. Thus:

– Informally exchange information to address any uncertainties;

– Use confidentiality agreements to assuage privacy and/or business concerns; and

– Share in the cost of informal information gathering (e.g., procuring public records, appraisals, etc.), unless one party is economically disadvantaged (in which case, the more flush party should consider offering to advance the cost so as to build trust).

4. Don't overlook the basics

A mediator’s job is to bring the parties to a desired resolution, based on the information that the parties bring to the proceeding. A party’s core motivations and concerns are of utmost importance and sometimes stand apart from the legal issues presented. So, before any mediation occurs, each counsel should:

– Understand fully the emotional issues driving the conflict;

– Define the dispute for the client in economic terms as well;

– Educate the client on all of his or her options, and the economics of each option; and

– Submit a separate, confidential mediation statement containing the facts and issues that are important to a resolution but not appropriate for inclusion in a statement exchanged with the other party.

5. Know when progress cannot occur without a mediator's help

It is not always clear that a breakdown in communication has occurred or that some aspect of the attorney-client relationship hampers informal discussion. So:

– Recognize when your or your opposing counsel’s communications retreat into pure advocacy;

– Recognize when a party's objectivity needs to be restored; and

– Know when you do not have a handle on all aspects of the conflict and need independent eyes to examine it.

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These measures will not only ensure that a mediation is scheduled when the parties are prepared to engage in it, but ensure that the mediator's fees for a successful mediation were well-earned.

– Andrew R. Wiener.

 

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andrew@andrewwiener.com