By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 6:  “Use the Mediator."

     Mediation is becoming so commonplace that many attorneys go through the familiar routines of the process, without really using mediation and the mediator fully.  Posturing from extreme positions, and butting heads over money in the usual format, are not the best approach to many cases.  Mediation can be used more creatively, to address your toughest problems, while getting to settlement.  The key is to enlist the mediator as your ally in dealing with these issues.  In other words, tell the mediator what you need and ask for help. 

Every case has its unique challenges, which must be successfully addressed to achieve an acceptable outcome.  They may involve a complex analysis of the facts or law, or more subtle concerns.  In some cases, a temperamental client will require special handling.  In others, opposing counsel may be a difficult personality, or have an unusual approach to the dispute.  The client, or a key witness, may be someone who will inspire a profound reaction (sympathy or loathing) from a jury.  When the case is approaching mediation, ask yourself this question:  What can the mediator do to help me address the unique challenges of this case?   Next, let the mediator know.

A common problem is one’s own client.  If the client is too furious, distraught, or bullheaded to follow or even hear your advice, it is tough to do your job with any hope of client satisfaction.  Why not call the mediator beforehand to brainstorm about what your client needs to make a rational decision?  Level with the mediator about the issue.  A skilled mediator can usually find a way to ease such clients into a fruitful discussion, with your help identifying the issues.  For example:

Ø      An attorney with an obstinate client, who did not trust his attorney, took me into the hall early in a mediation.  He told me to please not ask him to discuss the negative features of the case in caucus with his client.  He would lose the client, and the client already thought he was too negative.  We decided that I would be the bearer of bad news while the attorney argued the client’s irrational position.  He stayed in the client’s good graces.  The client heard the bad news from a neutral source, and settled.

Ø      Counsel for a distraught parent of a child killed in an accident asked to speak with me before mediation.  It was a very tough liability case for plaintiff, which the attorney did not want to try.  His client perceived the litigation as “fighting for her son” and would not compromise.  We needed a way for her to demonstrate her support for her son, other than having the attorney fight a losing battle at trial.  We conceived of a monument to her son, funded by the defense, and other measures to avoid future accidents of the kind which killed her son.  This was negotiated before butting heads over money.  Case settled.

Advance communication with the mediator can also help with the substantive issues.  One of several defense attorneys for a target defendant called me before a mediation to request that I coach plaintiff’s counsel to emphasize covered claims, in the brief and joint session.   I got those lawyers together by telephone to strategize, changing the focus of plaintiff’s presentation.  The case settled largely with insurance funds.

You may also use the mediator to structure the process in creative ways.  Joint sessions can be done in many ways or bypassed, as discussed in a previous “Mediation Tips” article.  Advance discussion about who should be present (or who should not) may help the mediator get the right people to the table.  Private caucusing can also be adjusted to suit each case.  Let the mediator know what you feel the client needs to hear or discuss, or the tone that would most effectively reach your client (or the opposing party). 

If your main difficulty in a case is the obstructive opposing attorney, tell the mediator and strategize about how best to handle interaction.  A mediator who is warned in advance to avoid unproductive interactions or topics will be better prepared to serve you. 

Much of this may be picked up by an intuitive mediator without being told.  Why take the risk, or bumble through part of a mediation while the mediator tries to pick up on the dynamics?  Use the mediator to help you with your toughest issues.

Next month we will consider:  “Interests Really Matter – Even in Money Negotiations.”

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