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Alternative Dispute Resolution

Feb18

10 Common Mistakes Attorneys Make in Mediations

Money Talks: Clients choose alternative dispute resolution to save costs and time, but 10 common mistakes attorneys make in mediation can result in loss of both

VIEWPOINT: Clients choose alternative dispute resolution to save costs and time, but 10 common mistakes attorneys make in mediations can result in loss of both.

The shift from traditional litigation to alternative dispute resolution (ADR) has been one of the most visible legal trends in the last decade. Increasing numbers of clients have turned to ADR as a means by which to reduce their legal costs and resolve disputes more quickly. As a result more attorneys have found themselves at the mediation table rather than in court. But mediation requires different skills from traditional trial advocacy, and failing to recognize the subtle tactical differences can mean a disastrous result for the client.

By recognizing and being prepared to avoid the most common mistakes made in mediation, an attorney can enter the negotiation more likely to achieve a positive outcome.

Failing to Send a Mediation Brief to the Other Side.

Since the classic definition of mediation is “a facilitated negotiation,” an attorney is well-advised to start the negotiation by preparing a thoughtful mediation brief that outlines the client’s case. It is important to send this brief to the other side to help ensure that they come to the mediation prepared to enter into serious negotiation. If not given an opportunity to review a mediation brief, the other side is likely to be surprised by the strength of a case, provoking a negative reaction that may hamper negotiations. It is often advisable for strategic purposes to hold back information from the brief, but failing to send a brief at all is a missed opportunity to begin to persuade the other side.

Failing to Have a Negotiating Plan.

Lawyers know where to start negotiations but often have no concrete plan in mind as to how to get to the bottom line. The best attorneys approach a mediation patiently and incrementally, well-prepared and ready to patiently work toward the goal.

An attorney must know the facts related to the dispute and the relevant law. An attorney should also endeavor to learn the other parties position. Further, he or she should be prepared to give a reasoned analysis of the client’s demands or offers and be familiar with jury verdicts in similar cases.

Not Knowing Who the Real Decision Makers Are.

Most attorneys treat the mediator as an arbitrator or ultimate decision maker and try to convince him or her of the strength of the case, when in fact it is the other side that must be persuaded. It is important to determine who on the other side is the real decision maker and to do whatever needs to be done to get that person in the room so the case can be presented to him or her.

Opening statements addressed only to the mediator and containing inflammatory language do little to help and may instead do damage to the mediation process. Instead, the other party and counsel should be addressed directly in such a way as to not undermine the chance for settlement. For instance, an attorney might begin a hypothetical opening statement by saying, “Ms. Jones, I don’t expect ever to convince you that my client is not responsible for your husband’s death, but I want to explain how I will be able to convince a jury that my client is not responsible.”

Failing to Prepare the Client Properly for Mediation.

The client’s decision makers must be present at the mediation. Any lesser agent will not have the vested interest or authority to settle the case. Ideally, the decision maker will be flexible, creative and open to criticism.

Once the client’s representative has been identified, it is vital that he or she understand the mediation process. Care should be taken to explain what it means to engage in a facilitated negotiation. Prior to the mediation, the attorney should also discuss with the client possible settlement options and the strengths and weaknesses of the client’s case.

It is important to assess to what extent the client or client’s representative can help persuade the other side. If the client is articulate and persuasive, he or she can effectively be made the center of the process. The client, with rehearsal, should be prepared to listen to the other side with empathy and to respond appropriately to the mediator or to the opposing parties. If the client is neither articulate nor persuasive, care should be taken to contain the client, limiting his or her participation.

Drawing a Line in the Sand.

Starting out with a non-negotiable position is a mistake. Doing so can stall or even end the mediation. Each side expects the other to be at least somewhat flexible. It is advisable for the clients to start at the high end of their evaluation and for defendants to start at the low end. This allows room to negotiate. Starting at a “reasonable” negotiation point is not wise as the other side will almost always believe that it is only a starting point.

Failing to Listen to the Other Side.

Lawyers are skilled at stating their own case. In mediation, however, listening to the other side is as important as articulating one’s own arguments. In the first place, it is possible to learn a lot about the other side’s case if you can get the other side to talk – particularly if the client or the client’s representative is doing the talking. By listening, an attorney may be able to identify new facts and issues. Let the other side vent as much as they want to. It is axiomatic that people are not usually willing to listen until they feel they have been listened to. Even if the case does not settle, listening to the other side can help focus the discovery process.

Failing to Use Documents and Exhibits Effectively.

The best attorneys will use just a few – usually a handful – of carefully chosen exhibits in a mediation. Charts, copies of relevant documents with appropriate passages highlighted and photographs can all be very convincing.

Failing to Understand that Respect and Even Empathy Are Powerful Tools.

Lawyers who are overly aggressive and belligerent are not persuasive. Being confrontational or insulting is not conducive to settlement. The goal of mediation is not to destroy the other side, particularly where the parties or attorneys have an ongoing relationship. An attorney must be sensitive to the relationships involved and the importance of preserving them.

Being firm but respectful can be a very effective tool. Personal injury or employment plaintiffs, for example, often feel the other side is engaging in a personal attack. If an attorney can show that although there is a disagreement, the client understands the opposing side’s point of view, the resistance to settlement can be significantly reduced.

In appropriate cases, an apology can be powerful. If the defendant is wrong, admitting this can help reduce the amount paid in settlement. It is important to keep in mind that admitting the defendant is wrong is not the same as admitting there would be a large jury verdict.

Thinking Mediation is Only About Money.

Often there are other options besides cold hard cash that can help settle a case. Are there concessions that can be made that will not cost anything? The attorney needs to be creative. For example, the plaintiff in an employment case may be willing to accept a settlement that includes a placement or retraining program.

Be Prepared to Close the Deal.

An attorney should always be prepared with a draft settlement agreement. Unwritten agreements are easily undone after mediation. Even a written agreement that includes only the principal terms of the settlement can be initialed by both parties as a means to ensure the agreement is not later undone.

Craig D. Higgs is a mediator and partner at the San Diego-based law firm of Higgs, Fletcher & Mack LLP where he has practiced since 1972. He has extensive training in the field of alternative dispute resolution, including the Harvard Law School’s Advanced Mediation Seminar, and frequently serves as an expert lecturer on alternative dispute resolution practices. Since 1983, Higgs has been involved in hundreds of mediations, settlement conferences, arbitrations and discovery hearings.

In addition, Higgs served as the president of the San Diego County Bar Association in 1984 and as president of the San Diego Chapter of the American Board of Trial Advocates in 1995. He was voted the San Diego Bar Association’s Legal Professional of the Year in 1989.


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