We asked our joint membership to respond to mediation-related survey questions in order to better understand the experience and to receive comments from the litigant’s and mediator’s perspectives. We would like to thank all those who responded to the survey. We received a robust response and are providing highlights to our joint membership. We hope that this survey will be the beginning of a meaningful dialogue between all participants in the mediation process.
A joint call will be held on Monday, May 16, 2016 at 4 p.m. EST to discuss mediation ethics with C. Edward Dobbs, author of the outline found here. Please use the dial in information below to join the call.
Dial in: (712) 432-1500
PIN: 692933
Best,
Judy Weiker
Mediation Committee Newsletter Editor
Ferve Ozturk
Bankruptcy Litigation Committee Newsletter Editor
SURVEY RESULTS (Selected Comments)
Prior to Mediation – Mediators Responses
What information should litigants provide mediators prior to the mediation?
· Position Paper (Shared with parties)– candid assessment of case strengths and weaknesses.
· Relevant Documents and Pleadings.
· Timeline of facts and Key Rulings.
· List of Participants – Litigants and important 3rd Parties (guarantors, insurance carriers, indemnitors, spouses, or significant others).
· Confidential Statement (Not shared with Parties) to include range of acceptable solutions, perceived obstacles to settlement, motivations to settle or continue with litigation, and non-economic issues.
· Assurance that decision-makers with appropriate settlement authority will be physically present.
Optimal Timing to Pursue Mediation – Litigators Responses
What is the trigger for sending a case to mediation?
· Expense of litigation – cost-benefit analysis of getting to judgment.
· Unreasonable position by other side.
· Summary Judgment Motion denied and adversary refuses to discuss reasonable settlement.
· Adequate information having been exchanged and the parties having litigated long enough to understand that absent a settlement, the case will continue.
· No ready appearance of movement or when negotiations have stalled.
· Both parties seek resolution and/or realize they have a risk of losing, but have yet to find common ground.
· Court order or unending discovery.
· litigation costs; denial of summary judgment; where there were unresolved discovery disputes; and limited resources.
Optimal Timing to Pursue Mediation - Mediators Responses
Why would a litigator not opt for mediation?
· Because the case is not yet ripe for mediation; i.e. insufficient discovery.
· Client desire to have day in court or requires favorable ruling on underlying issues.
· Where there have been previous efforts to settle and the parties are too far apart.
· Where delay is the goal.
· Strong belief in the case and desire to obtain maximum outcome.
· Perceive mediation as a fishing expedition for other side’s benefit.
· Client does not want to proceed.
Selection of a Mediator
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Litigators Responses |
Mediators Responses |
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What do you look for in a mediator? |
What qualities should a litigator consider when selecting a mediator? |
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Knowledge of law/subject area Experience with issues presented Mediation Training Unbiased – listen to both sides – open-minded Ability to persuade both sides to resolution (Understand strength/weaknesses and risks) Preparation Integrity, professional reputation and ethics Lack of Ego Mediation style: Facilitative or Evaluative Tenacity/Assertiveness – Willingness to confront Compassion
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Knowledge of applicable law/subject area Experience – legal and business Training Neutrality Ability to Persuade/provide constructive feedback Preparation Reputation Interpersonal skills Mediation style: Facilitative or Evaluative Tenacity, Willingness to confront, Persistence Compassion/Empathy Patience and Gravitas |
Selection of Judge as Mediator – Litigators Responses
In what circumstances and types of disputes would you seek a mediator who is a judge? What advantages/disadvantages have you found in your experiences?
· All disputes, they serve for free in this circuit.
· Where one party thinks it is right or good or the other side is wrong or bad. The judge can help where perception is more the problem.
· When I need someone who can tell my client that they are going to lose or at least be at substantial risk of losing.
· Whether the title of judge would cause my client or opposing party to give more credence to what the mediator has to say.
· The more complicated the issue and the more sophisticated the parties, the more likely to prefer a professional mediator. Judges can help particularly for mediations among unsophisticated parties that need to know weaknesses in their case.
· Judges as mediators where there are complex evidence issues that might control the outcome or issues resolves around the interpretation/construction of law.
· In addition, respondents noted that they considered mediation where the parties had entrenched views and to be a voice of reason for over-optimistic clients. Some by contrast thought mediation was more appropriate where the parties were willing to settle. They suggested a judge as a mediator was useful where the judge's credentials could move opposing counsel or their client.
Experience with Mediation and Bias– Litigators Reponses
What are your experiences on whether mediators have been biased?
· Everyone has his/her own set of biases. Talk to other attorneys who have used that mediator.
· Largely unbiased.
· Not too often. Arbitrators are far worse.
· Having a mediator who the other side has confidence in and who understands the strengths and weaknesses is far more important than bias or lack of bias.
· One side might see the mediator as potentially biased if the mediator leans more heavily one way.
· I think there is a kind of bias with mediators who are sitting or former judges.
· In addition, the respondents generally found that mediators were unbiased in their experience but have had negative experiences with judges acting as decision-makers and strong-arming clients.
Litigator Best Practices – Mediators Responses
What three do’s and don’ts would you want participants and attorneys to understand prior to and/or during the mediation process?
Do’s
· Do make sure participants understand that the dispute WILL be resolved and this is their opportunity to decide a mutually acceptable outcome, albeit imperfect.
· Mediators are tools to facilitate the process. They are neutral and are not there to judge or decide.
· Importance of Confidentiality.
· Come prepared to work and listen to mediator and other side’s positions.
· Have decision makers present with appropriate authority.
· Do consider making an apology to the opposing party, it needn’t admit liability, but may go a long way to diffuse an emotionally charged issue.
· Be courteous, candid and reasonable.
· Come with an open mind; apprise client of strengths and weaknesses of the case and potential litigation risk.
· Do supply quality mediation statement with useful factual and legal background information as well as descriptions to any perceived impediments to resolution.
Don’ts
· Participants can vent, but lawyers need not perform for their clients.
· Don’t make plans for the rest of the day - Never walk out!
· Don’t fall in love with the evaluation of your case or be overconfident to the detriment of being open-minded and flexible to come up with creative/satisfactory solutions.
· Do not waive the opportunity to make an opening statement. Your client expects to hear you make their case to the mediator and adverse parties; this is a rare opportunity for counsel to speak directly and unfiltered to opposing parties. With a little thought and preparation an effective opening statement can be delivered tactfully.
· Don’t allow the decision maker for the adverse party attend the mediation by phone or video conference. It puts your client who is physically present at a disadvantage.
· Don’t just give lip service to the process, act as though you are not prepared to settle, be aggressive in presentation, argumentative, lie or puff.
Mediator Best Practices – Mediators Responses
What are the best and worst practices for mediators?
Best Practices
· Active listening, creative thinking, problem solving.
· Control the mediation, but permit the process to play itself out as parties negotiate. Pre-mediate prior to in-person meeting and allow parties to get comfortable with the mediation process and the mediator. Effectively manage the emotional aspects of the parties. Encourage the parties to meet and talk directly. Keep in mind the need for mediator credibility, not authority.
· Use counsel as an ally in bringing client around to focus on the business solution.
· Never give up – if the parties do not settle during the first session, continue working afterwards.
· Tailor mediation to fit the parties and the dispute, communicating with all parties in advance of the mediation, and listening carefully to what is said, and what remains unsaid in both joint and caucus sessions.
Worst Practices
· Trying to impose mediator’s idea for a solution on unwilling parties; Caveat – Decide outcome in advance.
· Having a client question mediator’s impartiality. Appearing to favor one side (on substance of law or by over familiarity with counsel).
· Not facilitating process, not sharing other side’s logic or thought process and not discussing case in joint session.
· Keeping parties in the dark as to what is happening in the other room.
· Not being prepared and running mindlessly through the mediator’s playbook.
· Project pessimism or lack of positive attitude concerning prospects for settlement.
· Failing to obtain a written agreement signed by both parties once a settlement has been reached.