Edmund J. Sikorski, Jr., J.D.
Attorney, Civil Mediator, and FINRA Arbitrator
Preparing the Client for Mediation
Edmund J. Sikorski, Jr. J.D.
While much has been written on the subject of attorney preparation for mediation, there is scant written on the subject of preparing the client for mediation. The focus of this article is what information a client needs to know and understand PRIOR to mediation.
An unprepared client may very well become a “difficult” client in the midst of mediation and either precipitate or contribute to impasse when in fact the case should have settled despite the best efforts of counsel.
This article proposes a ten item check list to prepare the client for the mediation experience thus enhancing the prospect of case resolution.
1) The client must understand the purpose of mediation.
Rule 10.210 provides:
“Mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement”.
Rule 10.230 provides:
“Mediation is based on concepts of communication, negotiation, facilitation, and problem-solving that emphasizes:
a. self determination;
b. the needs and interests of the parties;
d. procedural flexibility;
e. confidentiality; and
f. full disclosure.
2) The client must understand the mediator’s role, i.e. what a mediator does and does not do.
Rule 10.220 provides:
“The roles of the mediator is to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise facilitate voluntary agreements resolving the dispute. The ultimate authority, however, rests solely with the parties”.
Simply put, the client must understand that the mediator owns the process, but the parties own the result.
3) The client must understand the process and know what to expect procedurally and substantively. Procedurally, the client needs to know that traditional caucus based mediation follows a format:
a. Mediator opening statements explain the process and remind the parties of the ground rules of civility.
b. Joint meeting statements of the parties. This is perhaps the first and last time that the parties will actually have the opportunity to “tell their story as they see it” to the other side without interruption.
c. Caucus: This is where the real work begins and preparation pays off. Unless the client is well prepared, the negotiation over what amount of money will be paid may very well be perceived as a frustrating auction process of concessions and adjustments that stimulates emotional responses rather than reasoned assessments that soon spiral into an emotional crash that deprives the parties of the opportunity to reach resolution before their best numbers are reached. A predetermined plan of negotiation of negotiation is essential to combat the natural reaction of emotionally responding to the offer and counter-offer process. It is absolutely essential to make a negotiating plan and stick to it. The client must understand the importance of staying in control of an otherwise reactive process that by its nature is calculated to be self defeating if left unchecked. The client must be encouraged and reminded that as in any military or sporting contest, victory is often achieved because of the self inflicted wounds of the other side on itself.
d. Impasse or written settlement agreement. Impasse is in theory a point when despite the efforts of the parties, they cannot come up with a solution or number that one party will pay to the other to settle the case. One or both parties leave the meeting, and the mediator files a report with the judge of the case limited to the simple fact that no agreement was reached.
But are we really done with mediation? Probably not. We know that only a few percent of cases actually go to trial. Perhaps one side or the other needs to think, re-think, digest, and re-evaluate what they really want or need. Many mediators follow through with the parties counsel after a short period of time to see if they can rekindle the process of resolution. It is common to find that although the parties want to continue to seek resolution, they are reluctant to initiate the process for fear of being perceived as weak. F.S 44.404 and Rule 10.420 are instructive on the subject of mediation duration in both court order and voluntary mediations as well as the requirement that a mediation agreement be formalized by the parties.
4) The client must understand the confidentiality of the entire process. F.S. 44.405 is straight forward:
“Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or participant’s counsel.”
In short, what is said or shown there stays there. This is not to say that otherwise discoverable or admissible evidence cannot be used in later proceedings or trial. Mediation is designed to provide a form in which the client can “tell their complete story, point of view and express emotions and concerns that may not come out because of the rules of evidence or trial procedure.
5) The client must understand the relevant facts and on what evidence is or is not likely to be admissible. For example: what a client believes about the other party’s intentions is not fact. What one part may have heard about the other party is not admissible evidence. Claim criteria must be objective to credibly support the claim or allegation.
6) The client must be prepared to understand what the law can or cannot give him/her. Saying it differently, the client needs to understand the remedy the client hopes/wants to achieve. Not all wrongs have an earthly remedy much less a legal remedy.
Aside from Constitutional and Statutory interpretations or determinations, court can only do two things: (1) grant or deny personal liberty, and/or (2) order transfer of property (including money) from one person to another.
If the remedy the client is expecting is other than 1 or 2 above, adjustment of expectations is in order.
7) The client must be informed of the facts in possession of the adversary. The corollary of this proposition is: “make sure the other side has all the information in you possession.”
The mediation process is heavily dependent on:
a. A frank exchange of information;
b. Justification of value;
c. A genuine interest to resolve the claim and avoid the risks of trial including attorney client conflict over disappointing or unanticipated results.
8) The client must be given reasonable expectations of case value and/or realistic outcomes AND THE REASONS WHY.
Valuing a case is not an exact science, but it is the job of a lawyer prior to mediation to learn as much as possible about the case (it is usually not possible to know everything), compare it with similar cases that have produced settlement and verdict, and reach a conclusion about the range of value into which the case will fall.
Case evaluation STARTS with an assessment of damages, and then DISCOUNTS with case and trial LIABILITIES including costs, present value, trial uncertainties such as how the judge applies the law, how the facts come in, how well the experts will testify, how well the other side’s lawyer tries the case, how the jury will react to witness and the attorneys along with a myriad of other contingencies and contingencies.
The mediation is sure to fail and create attorney-client friction if the attorney and client just “wing it and see what happens”.
9) BATNA and WATNA – DECISION TIME BATNA is an acronym meaning “Best Alternative to a Negotiated Agreement”. It represents the available alternatives when a party is unable to negotiate an agreement. It usually means going to trial.
WATNA is an acronym meaning “Worst Alternative to a Negotiated Agreement”. It represents the available alternative when a party is unable to reach an agreement on what the party thinks they want. It ALWAYS means going to trial.
In addition to the myriad trial uncertainties, there has recently emerged another reason why the adopting the position “I’ll take my chances in court” is an unrealistic emotional response to be avoided. It suggests that your BATNA is really your WATNA.
In 2008 Vanderbilt University Law School conducted and published a study based on a survey of 295 Florida state circuit court judges. The study concluded that judges rely heavily on intuition when making decisions on the bench and allow distractions to influence their decisions. In other words, decisions are reached and then the reason therefore are established rather than the other way around.
10) The client must understand that they must prepare themselves for the mediations session by:
a. Participating in at least one pre-mediation session with his/her/ their attorney.
b. Arranging for appropriate child care and time off work.
c. Turning off all personal electronic devices.
d. Discussing the case with affected 3rd parties and/or bringing them to the mediation.
e. Remembering to depersonalize comments of the mediator, other parties and above all keep in check reactive emotions. This will lead to impasse faster than any other single factor. Mediation takes 10% courage and 90% commitment to the process.