As a mediator, interesting questions keep cropping up from friends in legal practice. My favourite of these thus far has been, ‘Ali, how would you prepare to represent someone at a mediation?’ There are plenty of interesting articles and guides on the internet devoted to this subject, ranging from the practical to the theoretical, and answering this question could fill a whole skills-based course. But, I’d like to share my thoughts on some key points and share pointers I’ve picked up from colleagues along the way:
Flexibility & Creativity
“Blessed are the hearts that can bend; they shall never be broken” – Albert Camus
If you haven’t heard of one of the greatest sporting events of the 20th century, ‘Malice in Dallas,’ you’re missing out! It’s a favourite of the American Mid-West mediation giant, ‘Dick Calkins.’ It was a wonderful illustration of the financial and PR benefits that follow flexibility in the face of a legal dispute. Southwest Airlines and Stevens Aviation were faced with mammoth legal costs in the wake of a trademark infringement over the use of the slogan, ‘Plane Smart.’ Their novel solution however, not only saved them over half a million dollars in legal fees, but has been credited with $6 Million worth of publicity for Southwest Airlines and a 3 year increase in business from $28 Million to $100 Million for Stevens Aviation. So what happened?
Instead of litigating the breach, both sides agreed to arm wrestle to decide who gets to use the slogan. Though Stevens Aviation won the PR spectacle of an arm-wrestling event, they agreed to let Southwest Airlines keep using their slogan. The, ‘purse,’ from the three fights was donated to charity, with $10,000 going to the Muscular Dystrophy Association and $5,000 to the Cleveland Ronald McDonald House.
I admit that Rollin King was not exactly orthodox, with orange shorts and go go boots on his all-female cabin crews. Indeed, Southwest Airlines itself grew out of an idea that circumvented industry norms (you can read an account of this event on Gizmodo.) But this spectacle and the decisions of the two leaders are still discussed as a paragon of the, ‘win-win,’ solution. Look at the results reaped from the creativity of the two leaders , and glean whatever lessons you deem fit.
My advice is to prepare yourself and your client to be creative and flexible. You can settle the claim, on the spot, in any manner that your client likes. You can even get anything at all that you want, provided that it’s legal and the other side agrees to give it to you. I’m not advising you to go off the rails. But remember, a legal remedy is strict, usually pecuniary, and predictable. Confining your ideas to these frameworks can lead to a solution that does not fully meet your client’s needs. A 50 year old man with a family to support, involved in an employment dispute, may not need the £50,000 in damages as much as he needs the reference required to find a new job. Being creative in the solutions you put forward, and flexible in the positions that you take, can benefit your client’s case at a mediation.
Prepare Your Case
Preparation begins long before the date of the mediation. A leading reason for the lack of settlement at a mediation is missing crucial information on the day. Discuss with the other side what information needs to be ascertained and exchanged prior to the mediation. It is advisable that you check-in with the other side well in advance, asking them what information they still require to engage in a detailed negotiation on the day.
Preparing a statement for a mediation should start with a thorough, forensic study of the case. This is time-consuming and demanding, but I’d advise remembering that a mediation day is similar to a full hearing. It is not only possible but likely that there will be a full and final settlement on the day (or the early hours of the next,) and it may also be the only opportunity your client has to have their case put to the other side. It’s imperative therefore that the level of preparation on both sides meets the requirements of a full hearing.
Developing a plan for negotiation is not something on which I will comment. Lawyers in the UK are well served by myriad articles on this point (here is a recent example from Professor Lovegrove). I would add one tip however: Bear in mind that immediacy has value. Having money here and now, and putting the dispute in the past, has a pecuniary value. Do factor this in when developing your negotiation plan with your client.
I’d also advise, if you’re new to this sphere of practice, that you research the subject thoroughly.
Prepare Your Client
A good lawyer doesn’t need to be advised to meet with a client prior to a mediation, it’s general practice. But, a client needs to understand what will be happening on the day, the roles of the people involved, and the discussions that are likely to take place. Further, those representing ought to have a full picture of the cost this dispute is imparting on their clients and the goals they want to achieve on the day. When tallying the total cost, bear in mind the wider effects this dispute is having. For instance:
- Make a quick calculation of the managerial (or personal) hours devoted thus far to the dispute by the client, and ask them to start considering where that time and energy could have been invested had it not been thus consumed.
- Be candid in tallying the legal costs incurred to date and likely to be incurred in the near future. Though this may be uncomfortable, it is likely to arise as a topic of conversation on the day.
- The cost of this dispute may not be limited to the professional life of clients. The dispute may be having (and in some cases is likely to be having) an adverse impact on the wider quality of life enjoyed by those involved in it. There may also be collateral fallout, affecting friends, family, employees, business partners, and others. It’s up to you as a professional to decide how deep you wish to delve into these matters at this point, but asking your client to start considering these elements can have a beneficial impact on their expectations and impetus for settlement.
When discussing your goals for the mediation day, bear in mind:
- Mediation can be a creative process, and the case can be settled in a creative manner. It is important that your client grasps this concept.
- The client’s true needs may be different to those filed in the claim. Make sure you have a clear understanding of your clients underlying interests and needs before you enter the mediation room.
- The client has full control over whether or not the matter will settle on the day. Make sure you’ve discussed the strengths and also the weaknesses of the case with them and prepare them to discuss these topics with the mediator. A well prepared client will increase the likelihood of a good settlement being reached on the day.
Prepare Your Own Mind
There is one salient characteristic of a mediation that often takes those new to it by surprise: boredom. There is a lot of waiting to do during a mediation. Consider: the mediator(s) can meet with one party at a time. In a two party dispute, this means that roughly half of your time will be spent with the mediator out of the room. A good mediator will always leave you with something to do and discuss, but do bring your own laptop! No matter how thoroughly you prepare, you cannot foresee every angle on the day. New and critical information can not only come from the other side, but can spring from your own client during conversations with a skilled mediator. Bringing a computer and ensuring you have internet access will help you to research new law, new facts, and give you options for doing work that you otherwise wouldn’t have. It can also serve to pass the time with your client should you run out of things to discuss.
This is by no stretch of the imagination an exhaustive list. Becoming a good mediation advocate takes patient study, experience, an open mind, and keen ears. In this fast growing sphere of legal practice, reputation is critical. Above all else, I’d advise you to devote time and energy in developing your skills as a mediation advocate should you intend to step into a mediation room.