Max My Mediation

[1]For those of you who are new to mediation, know that it is a confidential[2], nonbinding process in which a neutral helps the parties find a solution to their disputes. While mediation has been gaining popularity in bankruptcy cases the past few years, to paraphrase Barbara Mandrell and George Jones[3], I am proud to say that I was mediating when mediation wasn’t cool. I received my mediation training in the early 90s, and in 1993 I wrote and delivered a speech for the Dallas Bankruptcy Bar Association in which I touted mediation as “a highly effective way to resolve civil disputes other than through a judge or jury at the courthouse.” Now, with grayer hair and a longer road behind me, I would like to share some suggestions from the mediator’s perspective that can help maximize your mediation.

Let’s focus on four things: (1) building confidence in the process; (2) using the pre-mediation statement to identify the parties' objectives; (3) being open to assessing the barriers to resolution at the session; and (4) overcoming obstacles to reach a settlement.

Confidence

One of the great aspects of mediation is that it is built around letting the clients be involved directly and get things off their chests in a way they cannot in court. To maximize this benefit, it is important for the mediator to build confidence in the process. It will help greatly if the lawyers do not create doubts in their clients’ minds before the process even begins (e.g., avoid statements like “We’re only going because the judge is making us.”). Also, if parties have any concerns about the mediator’s impartiality, that should be addressed early on — either before the mediator is selected, or certainly no later than the first private session. Make sure your client understands that the mediator is an advocate for settlement and does not prefer one side over the other.

The Pre-Mediation Statement

In an article for the ABI Journal, borrowing from the Spice Girls, I noted the importance of filing motions that “tell me what you want, what you really really want.”[4] This translates to the mediation statement: While it is necessary to summarize the dispute and why you think your side should prevail, spend some time focusing on possible resolutions. Remember, the mediator could be a lawyer or a judge or a retired judge, but for this process the person is purely a neutral; he or she is not deciding anything. So, focus more on what you need to get the case settled and less on why your case is bulletproof (note: It is rare to have a case that cannot be lost, and unlikely that your judge will require you to mediate an unlosable case.[5]). If there are two or three key documents — the wire transfer, the explosive email, that oh-so-awesome admission at the deposition — then share those, but if you have 37 bulky exhibits that you put in your pending summary judgment motion, which includes 453 pages of deposition transcripts, then summarize, but don’t send all of it. When I mediate as a judge, I set page limits on the statements; for most mediations, while you might have been living the case for two or three years, you need to be able to boil down the disputes to bite-size nuggets that the mediator can digest for the day or so that you will be together.

Obstacles to Resolution

I usually start the mediation with a general session during which I tell everyone to forget about the lines in the sand they may have already drawn (think about how easy it is for a simple glass of water to wash away lines in the sand), and that my objective is to help the parties find a resolution no one will like but everyone can live with. In the separate rooms, as the mediator is trying to figure out how to help the parties get to an agreement, what is he or she being told? Naturally, that the other side is being unreasonable, unrealistic, un-etcetera, un-etcetera; remember, the mediator is hearing that in both rooms. If your client is being unreasonable, let the mediator know, or at least don’t impede the mediator’s effort to determine that for him or herself. Prepare your client to have a frank best case/worst case/most likely case conversation with the neutral by talking ahead of time about what the possible ranges of outcomes may be if you try the case, and then somebody who is not happy appeals.

How to Overcome Obstacles: Where Art Meets Science

The skilled neutral will figure out why the case is not settling and as diplomatically as possible try to break down the barriers. Sometimes, it takes a soft touch, a gentle hand on the shoulder; other times, it requires the verbal equivalent of a two-by-four to the forehead. Maybe the witness will not be as credible as you think or have the same recollection that advances your theories; maybe the law is not as settled as you’d like it to be; maybe the email chain is more ambiguous than your optimistic read. As advocates, you can help the process by focusing your clients less on how awesome they think their case is and more on what they need to get in a settlement; try to emphasize as the neutral what it will realistically take to help your client get from “no” to “maybe” to “yes.”