Fred's Tips
For Success in Mediation

Before the Mediation

1. Do your investigation/discovery early. Your ability to persuade opposing counsel to your position at mediation depends on your ability to "put your cards on the table."
2. Develop a theme that explains why the facts should be interpreted in a manner favorable to your client. Make sure the theme is consistent with the human experience. And then use the mediation to test the viability of that theme.
3. Don't "gild the lily" with a lot of alternate theories/defenses. Your credibility and persuasiveness are advanced by simplicity.
4. Plaintiffs counsel: Consider whether you want to raise claims that trigger insurance coverage. Insurance may provide a deeper pocket for recovery, but it may also provide funds for a stiff defense.
5. Defense counsel: Seek insurance coverage ASAP!
6. Cooperate and be friendly with opposing counsel in the underlying litigation to create an atmosphere that promotes settlement.
7. Go to mediation only when you are prepared to fully present your case and you and opposing counsel are both serious about settlement.
8. Don't squander the mediation opportunity. A "multiple mediation" strategy wastes time and money and causes discord that makes settlement more difficult.
9. Beware the opposing attorney who seeks an early mediation not to achieve settlement but to: (a) obtain informal discovery; (b) establish a ceiling over, or a floor under, settlement positions you may advance in the future; (c) adjust your expectations; and/or (d) determine the best offer you will reject to set up a CCP § 998 offer.
10. The best times to go to mediation are: (a) before the initiation of litigation when there is much to be saved by an early settlement and counsel are the least antagonistic; (b) after each side has completed its initial round of discovery; and (c) when trial is imminent.
11. To avoid malpractice liability, advise your client(s) in writing of the risks if the mediation fails.
12. To avoid an ethics violation, secure the "informed written consent" of multiple clients to their joint representation and an aggregate settlement.
13. Pick a mediator who will be persuasive with opposing counsel and has the proven ability to "close" a deal.
14. Agree to share the costs of the mediation. The split need not be even, but each party should have a monetary stake in making the mediation a success.
15. Select a neutral facility for the mediation. Such a facility creates an atmosphere that is conducive to settlement.
16. Don't set artificial deadlines (e.g., a half day) for the completion of the mediation. A complex matter may take a full day or more to resolve.
17. If possible, refrain from exchanging settlement demands/offers in advance of the mediation. You are paying the mediator to assist you in analyzing the strengths and weaknesses of your case and to devise a successful negotiation strategy. Use him/her for that purpose.
18. Perform research regarding recent verdicts and settlements in comparable cases in preparation for discussions with the mediator.
19. Make sure that all decision makers (including insurance adjusters) will attend the mediation.
20. In public entity cases in which a governing board has to approve the settlement, arrange for an influential member of the board to attend the mediation.
21. Defense counsel: Do not come to mediation with a cap on your settlement authority that you cannot exceed without the approval of an individual who is "outside the loop" of settlement discussions. If you must secure the approval of such an individual to exceed your authority, keep him/her informed of developments and in touch with the mediator by telephone throughout the day.
22. Prepare your client for the mediation/negotiation process. In particular, explain to him/her that:
    • (a) the process involves compromise, and it will not be possible to achieve his/her "best day in court;"
    • (b) there will be many offers and counter-offers exchanged, and, hence, your opening offer/demand should not be interpreted as your "end-of-the-day" position; and
    • (c) the mediator will be playing the role of "devil's advocate" with both sides, and should not be seen as other than neutral because he/she does so.
23. Plaintiff's counsel: In preparing your client to speak to the issue of his/her emotional distress, counsel him/her to:
    • (a) avoid reciting all the underlying facts that gave rise to his/her emotional distress;
    • (b) focus instead on the emotions/symptoms he/she actually experienced;
    • (c) refrain from speaking to such unattractive emotions as anger, hatred and contempt; and
    • (d) keep the presentation to 5 minutes or less.
24. Prepare a brief that succinctly lays out your legal theories and evidence.
25. If your relationship with opposing counsel is strained, it is usually best not to share your brief with him/her. Even if there is little that needs to be kept confidential, opposing counsel will likely be more open to your arguments if he/she hears them from the mediator.
26. Don't wait until the last minute to send the mediator your brief.
27. Set up a telephone conversation with the mediator in advance of the mediation if you feel it would be helpful.
28. Defense counsel: Email a proposed settlement agreement to the mediator in advance of the mediation.

At the Mediation

29. Keep the following observations of "human nature" in mind as you approach the mediation process:
    • a. People feel a need to reciprocate when others have given to them. In a negotiation context, a concession can be perceived as a "gift" that triggers this need. This is especially true when one makes a second concession from a previously stated position without an intervening response from the opposing side.
    • b. People tend to be more motivated by the risk of loss than the desire for gain. Thus, the closer settlement appears, the more inclined they become to make concessions to prevent it from slipping away.
    • c. Once people make a public commitment to a course of action they feel a need to act in a manner consistent with it. Accordingly, it is best to avoid proclaiming one's "bottom line" if one desires to maintain flexibility in negotiations.
    • d. People are more inclined to cooperate with those they like than those they dislike. Hence, a hostile, adversarial approach to negotiations is highly dysfunctional.
    • e. People cooperate more freely with people they regard as members of their group than outsiders. As such, it is often helpful to recall an earlier time period when the parties were part of a common enterprise.
    • f. People put great stock in the "truths" revealed by a story. Hence, the telling of a short story can be a compelling way to make a point.
30. Bring your evidence/deposition transcripts to the mediation in an accessible format.
31. Defense counsel: If you anticipate claiming that defendant will have difficulty satisfying the financial terms of a settlement, bring its financial records to the mediation.
32. Weigh the pros and cons of a joint session. They are as follows:

    The pros

    • It enhances one’s understanding of the opposing party’s position.
    • It provides a rare opportunity to communicate directly with the opposing party.
    • It provides plaintiff an opportunity to vent and bring closure to an unhappy episode in his/her life.
    • It provides defense counsel an opportunity to assess the abilities of the plaintiff as a witness.
    • * Note: The last issue is most important before the deposition of the plaintiff has been taken.

    The cons

    • The joint session takes time to complete, and sometimes makes the parties feel they are “behind the clock” throughout the negotiation.
    • If the emotions of the parties are high, communications at the joint session can become “dysfunctional” with regard to the goal of achieving settlement.
33. If you elect to participate in a joint session…
    • (a) Be courteous, professional and friendly.
    • (b) Scuttle the PowerPoint and go with visuals and/or a video to accentuate your points. PowerPoint slides tend to stifle the spontaneity of a presentation. Visuals and videos, on the other hand, can add greatly to the interest a presentation generates.
    • (c) Present your client's case in the least inflammatory manner possible.
    • (d) Remember the nonverbal aspects of communication. Your facial expressions, tone of voice and gestures often say more than your words.
    • (e) Listen intensely to what the other side has to say! Not only are you likely to learn something, you will promote good will in satisfying the need of others to be heard.
    • (f) Plaintiffs counsel: Remind your client of the speaking points outlined above.
    • (g) Defense counsel: Show genuine empathy/compassion
      for the plaintiff without conceding fault.
34. Defense counsel: Caucus separately from the insurance adjuster regarding disputed coverage/contribution issues.
35. Anticipate the questions you will be asked in caucus sessions with the mediator. You should be prepared to answer some variant of the following five questions:
    • 1. What are the strengths of your case?
    • 2. What are the weaknesses of your case?
    • 3. What do you think the opposing side is willing to do at the end of the day?
    • 4. What will happen if we fail to achieve a settlement?
    • 5. What do you regard as a fair settlement?
    • * Note: The best mediators do not actually ask the last question because they do not want you to become committed to a "bottom line" position. But they sure talk around it a lot.
36. Concede your weaknesses, and then explain how they may be met. Doing so not only enhances your credibility with the mediator, it empowers him/her to be an effective "devil's advocate" with the opposing side.
37. Don't forget your role as a counselor to your client while acting as his/her/its advocate. If you go too far as a cheerleader, it may be difficult to get your client to be realistic in negotiations.
38. Plaintiff's counsel: Remind your client that you need to establish not only liability, but substantial damages, to have a good case.
39. Don't hold evidence/legal theories back from the mediator. Rely on the mediator to select the right time to present the evidence/legal theories in caucus sessions with the opposing side.
40. Adjust your negotiation strategy (i.e., integrative, distributive, or mixed) to fit the case. The key to determining which strategy to apply is whether the relationship between the parties is on-going. Where the relationship continues, the parties will usually be more cooperative and creative in their efforts to resolve the dispute, permitting the use of an integrative ("win/win") approach. Where the relationship has terminated, and the dispute is primarily over money, a distributive ("win/lose") strategy usually must be applied.
41. No matter what kind of dispute is in issue, consider how some or all of the interests and needs of the opposing party may be creatively satisfied.
42. Set a flexible goal that contemplates both the risks and upside potential of litigation after meeting with the mediator.
43. Don't get sucked in by the "Theory of Prominence." Drawing a "line in the sand" at an arbitrary, round number (e.g., $100,000) can defeat a settlement opportunity.
44. Anticipate the number of rounds of negotiation that are likely to transpire. Where soft damage claims like emotional distress or pain and suffering are in issue, each side usually makes six or seven demands/offers before they reach loggerheads or a deal. Where such soft damage claims are lacking, there are usually four or five rounds of negotiation.
45. Remember that in setting your opening demand/offer you are juggling two principles that are in conflict. You have to give the other side hope that they will be able to reach a deal with you by the end of the day. At the same time, you have to "hold back territory" in terms of dollars so that you have room to make concessions as you go through the day.
46. If, contrary to the advice above, you have exchanged settlement demands/offers prior to the mediation, observe them in the absence of a spectacular new development. Reneging on a prior demand/offer at the outset of the mediation can derail negotiations.
47. In cases in which soft damage claims are in play, a plaintiff can usually be expected to begin negotiations with a demand that is 3 to 4 times his/her goal in the negotiations. This permits him/her to drop 2 to 3 dollars for every dollar the defendant puts on the table. Where soft damage claims are lacking, the opening demand is usually in the range of 2 ½ to 3 times the plaintiff's goal, permitting a drop of 1 ½ to 2 dollars for each dollar offered by the defendant.
48. Plaintiff's counsel: Leaving the issue of multiples aside, you should never make an opening demand that exceeds your "best day in court."
49. Plaintiff's counsel: If you use too high a multiple in establishing your opening demand, you may offer the defendant so little hope that the mediation will abruptly end. And, even if the mediation continues, you risk losing credibility because it will prove necessary to "free fall" to close the gap to make settlement possible.
50. Plaintiff's counsel: Do not make the opposite mistake of using a "buck for a buck" negotiation strategy -- i.e,, one in which you set your opening demand at 2 times the amount of your goal, and then drop a single dollar for every dollar the defendant offers. It will usually defeat settlement because it defies the conventions noted above.
51. Defense counsel: While the principle of "holding back territory" may predominate when fashioning your initial offer, you also need to give some hope to the opposing side in making that offer.
    
52. Beware the implications of time in responding to an offer from the opposing side. Sending the mediator back with your response too quickly can imply that you were pleased by the offer.
53. Do not expect the opposing side to close the gap in one or two moves. A drastic move entails a "loss of face" that few are willing to endure.
54. Defense counsel: What is important is the "bang for a buck" (or dollar multiple) you are receiving in response to your offers. There is no official limit to the number of rounds to a negotiation. Thus, you should be pleased if you are receiving a dollar multiple that leads in the approximate direction of your goal.
55. Plaintiff's counsel: You should give the defendant a larger multiple at the beginning of the negotiations and progressively smaller multiples as you move through the day. It is the average multiple you give the defendant that matters.
56. Do not be too predictable in your negotiation moves. You do not want the opposing side or mediator to be able to precisely read your intentions.
57. At the same time, point in a general direction with your negotiation moves that is slightly higher (if you represent the plaintiff) or slightly lower (if you represent the defendant) than you are really willing to go. You want the opposing side's goal to become getting you off a goal that is not really your goal.
58. Do not allow yourself to become too distressed by the disingenuous nature of the negotiation process. It is a game, and a good negotiator is no more dishonest than a good poker player.
    
59. Consider using "bracketed" or "range based" proposals at the beginning of negotiations to help "cross the ocean." Surprisingly, the approach permits the parties to continue negotiating and exchanging information even while rejecting one another's proposals. A huge closure of positions can be accomplished when such a proposal is finally accepted.
60. Pay attention to the issue of in whose "court the ball rests" to make the next move in negotiations. It makes a big difference to negotiation outcomes.
61. Do not be the one to terminate the mediation. The way to express a negative reaction to a small move by the opposing side is by making a proportionally small move in response. It may be that the opposing side is only testing you and will cave in if you "stick to your guns." You will never know, however, if you walk out.
62. When faced with an impasse, call for a breakout session with the mediator and opposing counsel outside the presence of the clients. A "heart-to-heart" communication between counsel can often set the parties back on the path to settlement.
63. In a "mixed" negotiation, bring out your creative/non-monetary proposals toward the end. They are best used to get the parties over the final divide. If a plaintiff brings them out too early, the defendant may interpret that as a sign that dollars are less important to the plaintiff. If a defendant does so, the plaintiff may view that as a signal that the defendant has little money to offer.
64. Begin discussing the terms of settlement two or three rounds before the end of negotiations. Settlement terms (e.g., time payments) sometimes impact the dollar amount to which a party is willing to agree. Waiting until the dollar amount has been established to discuss the terms can place the settlement at risk.
65. Anticipate that a "mediator's proposal" will be used to "close the deal." Thus, what you call your "last and final offer" should have a little room left in it to accommodate one more move to close the gap between the parties.
66. If any terms remain unresolved, ask the mediator to address them in his/her "mediator's proposal." A "mediator's proposal" is supposed to bring the parties to final agreement, not serve as a step toward yet more negotiations. Moreover, you will want to know what the terms are in deciding whether to accept the "mediator's proposal."
67. Do not allow a mediator to make a "mediator's proposal" while the parties remain "oceans apart." Such a proposal is usually unsuccessful, and it can greatly undermine your bargaining position.
    
68. Beware the implications of time in responding to a "mediator's proposal." The longer you sit at the table contemplating a mediator's proposal, the more it implies that you are open to accepting it. To deal with this problem, have the mediator extract a commitment from both sides to remain at the mediation until he/she has received the response of both sides. The explanation can be that the mediator may want to try something else if his/her "mediator's proposal" is rejected.
69. Execute a settlement agreement that includes all the appropriate terms before calling it a day. Having achieved settlement, the last thing you want is for the deal to fall through because one of the parties has "second thoughts" about it.
    
70. Make sure the settlement agreement is admissible in court. Remember, a settlement agreement is a confidential mediation communication. So, if you want to be able to introduce it into evidence before a court, you will need to write around that confidentiality.

After the Mediation

71. If you were unsuccessful in the mediation, make a CCP § 998 offer for the amount of your last settlement demand/offer. There is nothing to be lost by repeating a demand/offer, and it may result in your ability to recover costs down the road.
72. Keep working through the mediator. Mediators pride themselves on being able to bring about settlements. As such, they can usually be counted on to do what they can to help the parties get back together following a failed mediation.
73. After you settle, take a vacation. You deserve it.