It is tempting for those who are not trained and experienced in mediation to conclude that since no courtroom is involved, the process is one where advocacy skills are unimportant and thorough preparation is unwarranted. Such a response does a disservice to the value of the ADR process and undercuts the client’s interest in securing an early and fair resolution of the dispute. The purpose of this article is to show that with good written and oral advocacy skills and thorough preparation, the mediation process can work successfully for you and your client.
Presentation of your case at mediation.
(1) Writing a persuasive mediation brief
To effectively use the mediation process, each side should present a persuasive brief outlining their case to the other party and to the mediator. The mediation will not be successful unless both parties understand the position of the other. Accordingly, the first and critical advocacy skill required of a party representative is the ability to write a persuasive brief.
A persuasive brief gives the other side an advance preview of the case with the time to digest and evaluate their opponent’s position. Some argue that the mediation brief should be confidential, limited only to the mediator. However, save in special circumstances, the brief should be ‘directed’ to both the mediator and the other side because it is the first and most powerful weapon a party can use to persuade the other side of the merit of their case.
Faced with a persuasive brief, a Plaintiff may reduce his or her expectations or a Defendant may increase its evaluation. Such adjustments are best done in advance of the mediation to give the opposing side ample opportunity to reevaluate its case. Once at the mediation, there is usually less time to make radical changes in evaluation and position.
(2) Contents of the Mediation Brief
The mediation brief should be a reasoned statement of the party’s case, backed up by reference to facts, witnesses, documents or any other forms of evidence as well as, where appropriate, a discussion of applicable law.
Writing a good mediation brief is an advocacy skill. Its length and complexity depends on the case and the issues. Its format will vary with the skill and creativity of the writer. A brief may include exhibits and can be combined with or even consist of a Powerpoint or other audio-visual presentation.
The contents of a typical brief, set out by separate sections, are as follows:
- A short summary or overview of the case.
- An introduction of the parties and their representatives.
- A statement of material facts.
- A discussion of causation, if needed.
- A discussion of liability.
- A discussion of damages.
- A discussion of the value of the case and settlement
If there are any obvious legal issues bearing on the case, they should be discussed sufficiently to persuade the mediator and the other side of the merit of the position advocated.
If there are helpful expert reports, they should be disclosed or at least used in a way that communicates the anticipated testimony. Helpful exhibits should be identified and attached.
Ordinarily, the most powerful tool of persuasion is the evidence in the case. Sometimes, a photograph, specific documents or items of evidence are the key to persuasion. A good advocate knows when and how to use these in the mediation brief.
A good mediation brief should address the value of the case and settlement. It should state what offers have been made and what special obstacles there are to implementing a settlement. These steps will make the mediation productive.
Finally, the mediation brief should, consistent with the information suggested above, be brief. Mediators are not persuaded by unnecessarily long written presenttions.
(3) The presence of decision makers with confidence in their advocate
The mediation is unlikely to be successful unless those with the right and the power to make a settlement are present and have confidence in the advice of their legal representative. This means that the plaintiff and the defendant must be present. If either party is an entity, an authorized representative must be present.
Sometimes, if the party is a large entity such as an insurer or public corporation, there may be several different people who have to ‘sign off’ on any deal. It is vitally important that such persons confer in advance of the mediation to give their representative substantial discretion to make a deal and the ability, if needed, to contact other decision makers at the time of the mediation if different authority is needed.
Unless the client has confidence in the advice of their legal representative, the concessions necessary to compromise and reach settlement may be impossible to achieve. This may mean that counsel with experience of what may happen in the courtroom should represent the client at mediation. Depending on the client, the issues and the value of the case, a solicitor and/or counsel might both be present.
(4) Understanding the economics of the litigation
It is essential that the party representative has reliable information about the costs incurred to date and the costs likely to be incurred if the case does not settle. These costs are an important part of the settlement equation and must be considered.
If counsel is instructed it is essential that he/she ascertain from their instructing solicitor details of the costs to date and the anticipated future costs through trial. The clients will need to know what the case will cost through a trial in order to fully evaluate the merits of settlement.
Unless the economic realities are understood by all concerned the benefits of settlement cannot be properly appraised and the value of mediation will be lost.
(5) Settlement Offers in Advance of Mediation
If it is possible, the parties should exchange offers in advance of or include them in their mediation briefs. Although cases can be resolved at mediation without such offers, the advantage of doing so is that they give each side an opportunity to set the parameters of the negotiation field. The more time that each party has to evaluate the position of the other, the more productive mediation negotiations can be.
What is an appropriate settlement offer from each side? Each case is different and there is no ‘one size fits all’ approach to settlement offers and responses. No offer should be a ‘bottom line’ position because without flexibility there is no point in mediating. On the other hand, no offer should be out of touch with the reality of the case as that will cause the other side to lose interest in negotiating.
It will be appreciated that case evaluation and negotiation skills are well suited to mediation. Setting the settlement parameters and then negotiating in a realistic way towards an acceptable resolution takes experience and negotiation skills. Getting the point across in face to face negotiations without insulting the other side takes similar skills.
(6) Negotiation skill in mediation
Much has been written about the art of negotiation but for those not familiar with mediation it is may be, but is not always, different than face to face negotiations at the door of the court. Generally, negotiations in mediation take place through the mediator though sometimes negotiations can proceed face to face between legal representatives with the mediator present.
Mediation is generally not an occasion where abbreviated, aggressive posturing takes place. Mediation encourages reasoned negotiation. Even where one or other side may be aggressive or emotional, the mediator’s job is to temper such behaviour as it is generally an obstacle to resolution.
On the other hand, away from the courtroom, mediation does not have the pressure of an immediate resolution imposed by the court. Some participants in mediation are tempted to drag their feet in negotiations because of this lack of pressure. However, responsible lawyers understand the economic and practical benefits of early resolution and that foot dragging rarely benefits a client. As a result, mediation works well with good negotiators.
(7) Other advocacy skills in mediation
A good lawyer knows that it is not only facts and law that persuade but also people. Where there is a conflict of fact, the credibility of witnesses is critical. Mediation offers the opportunity to evaluate and sometimes to display the credibility of witnesses. A good witness might be allowed to talk freely at mediation. A poor witness may have to be kept quiet. The decision about witness performance and presentation requires the experience and judgment of a good advocate.
Not every mediation proceeds according to a script. A good lawyer should be ready to show the flair that sometimes changes the settlement equation. Thus, if there is a witness or an expert who supports a party’s case, why not have them attend the mediation? If a reconstruction has been performed that can be demonstrated by video or photographs, why not show it? It always a question of judgment as to what to say, to do or show at mediation but such judgment is the hallmark of a good advocate and sometimes can help settle an otherwise difficult case.
(8) Using the mediator to advantage
Mediators prefer to be facilitative rather than evaluative. This is because no one can know a case as well as the party presenting it and a mediator who presumes to do so risks making a serious error of judgment. Also, the mediator does not know everything a party knows and sometimes a party does not or cannot disclose information that would otherwise change the mediator’s personal evaluation.
On the other hand, the mediator can provide a ‘reality check’ on the parties’ factual or legal positions and can sometimes see weaknesses or strengths that a party may have overlooked. Accordingly, the wise advocate learns not only how to try to persuade the other side in mediation but also how to listen and learn from the mediator.
(9) Making the settlement enforceable
In the event of an agreement to settle the case, it is of paramount importance to make the terms of the settlement enforceable. Thus, all of the material terms must be in writing and assented to by the parties or those with authority to bind the parties. The terms must be clear, free from ambiguity and sufficiently complete and certain that a court would have no difficulty enforcing them. The drafting of a settlement agreement therefore requires skill and care from the legal representatives.
(10) Solicitor or barrister?
Mediation works well for skilled evaluators and negotiators. A good advocate understands the value of a well prepared case, knows how to put the best face on a weak case and best to present a case. A solicitor responsible for the case must decide if he or she has the knowledge and skills to prepare a mediation brief and handle the mediation or whether the specialized presentation skills of a barrister are required. Some solicitors will have the necessary skills while others will prefer to involve a barrister. The critical points are for the representative are to have the confidence of the client and the necessary negotiation skills.