HOW MEDIATION WORKS
Linda R. Singer ADR Associates, L.L.C. Washington, D.C.
In my practice I have seen a dramatic change in the way many labor and employment lawyers approach representing their clients in mediation. What are the differences between those advocates who go through the motions of mediation as if it were merely a judicial settlement conference or a negotiation between attorneys on the courthouse steps and those who make sophisticated use of the mediator and the occasion to persuade the other party – and often their own clients – to enter an advantageous settlement? The differences lie in preparation, presentation, focus and strategy.
Before the Mediation Getting the Other Party to the Table Some attorneys, although interested in an early settlement, hesitate to suggest mediation to the other party for fear of appearing weak. The easiest way around this problem is to adopt a policy of offering to mediate in every case. For a corporate client or other organization this is an obvious course; for others, including the individual employee, the attorney’s firm can have a pro-mediation policy. Once there is a policy, no matter how flexible or informal, offering mediation in a particular situation says nothing about your opinion of the merits. Where there is no policy more creative methods may be needed. Perhaps the other party has such a policy. Most Fortune 1000 corporations have signed the ADR pledge promulgated by the CPR Institute for Dispute Resolution, for example; a list is available from CPR. Having checked you may call opposing counsel and suggest that you would rather mediate sooner than later. The same strategy may be useful where there is a court-based ADR program. You may call opposing counsel (or an unrepresented party) and suggest that, since it is inevitable that a mandatory court program or a judge who is known to favor mediation will land you in mediation at some point, you would prefer to do so early, particularly if you thereby would retain the ability to choose your own mediator. With the EEOC now offering mediation by internal staff or generally inexperienced (because underpaid) mediators, the same approach may apply there as well. Finding Out How the Mediator Works All mediators are not alike. Some of us do most of our work in separate caucuses; others try to keep the parties in the same room for as long as feasible. Some of us focus first on non-monetary interests, such as continued employment, business relationships or reputation; others move quickly to valuing a claim and offering opinions concerning the likely court outcome if the case does not settle. Some move back and forth among approaches depending on the situation. How can you know which type of mediator you have selected (or had assigned to you), in order to prepare yourself and the client to get the most out of the opportunity mediation offers? First, do not hesitate to question the mediator, whether in a joint conference call with opposing counsel or in a separate pre-mediation call to the mediator to inquire about the process. Most mediators are open to such contacts, believing as I do that there is no such thing as a forbidden ex parte communication in mediation. My only concern about such a contact would be the appearance it might present to the other side if its counsel is a neophyte about mediation. Alternatively, do not hesitate to ask the mediator for the names of lawyers for parties in similar situations who have used the mediator. Not only should you be able to call such people for references; you can ask them about the mediator’s general approach and any tips they may have about working with us. For example, is this a mediator that treats clients with respect or attempts to browbeat them into accepting a settlement? Can this mediator deal with a lurid story of sexual harassment by empathizing with the apparent victim while maintaining a balanced view of the possibility of miscommunication or exaggeration? Will your client like and trust this mediator? Will the decisionmaker on the other side? If not, how can you use the occasion to attempt settlement without relying heaving on the mediator to get you there? Writing the Story It is almost always helpful to give the mediator a brief synopsis of your client’s story in writing before the day of the mediation. (Those of us who mediate most days particularly appreciate receiving the statements a week to ten days in advance.) I use the word “story” advisedly to mean a narrative version of the events that precipitated the dispute, rather than a series of legal claims or defenses. The exceptions may be class actions, where there are many stories, if those stories have been detailed fully in a complaint or answer. In general, complaints and answers make dull reading and often lose what I consider as the three most important threads of a pre-mediation statement: 1. What happened to precipitate the dispute? 1. What are your client’s goals looking forward? 1. What should the mediator be thinking about in the way of potentially creative approaches to resolution? My usual preference is to keep the pre-mediation statements in confidence, in the hope that advocates will share with me any sensitive information about the parties or precipitating events, as well as genuine interests and possibilities. I do not expect to be given “bottom lines” and would not take very seriously any statement that purported to draw a line in the sand concerning any issue before a face-to-face meeting. In order to be able to assure the parties of confidentiality for any documents provided before the mediation session begins, it is my practice to ask the attorneys to fax me a signed copy of my standard Agreement to Mediate before sending me their statements; I then get original signatures on the agreement from everyone who attends the mediation. The law regarding confidentiality in mediation is in flux. Be sure you may want to assure yourself that the mediator’s proposed agreement affords sufficient confidentiality under whatever law applies. If not, now is the time to propose any needed revision. The exception to my usual preference for confidential statements is in situations where there has been little or no prior exchange of information between counsel, whether in the form of informal conversations, negotiation, or discovery, and each party’s version of their history may come as news to the other side. In that event I may suggest that most of the statement be exchanged but that a confidential addendum might suggest to me any sensitive information I should have at the outset or potentially productive avenues that might be pursued at the mediation. If the mediator’s agreement form contains a waiver of liability for any negligence on the mediator’s part, you should consider carefully whether you are prepared to sign it (or, in fact, whether you wish to use that mediator). Mediators’ immunity (unlike arbitrators’) has developed in the context of court-connected programs that rely on volunteer mediators. Many mediators see no justification for requiring such immunity for professional mediators who charge fees at professional rates. Malpractice insurance is readily available to us. Developing the Guest List Even before drafting the mediation statement advocates should be focusing on the appropriate cast of characters to attend the mediation. If this is an individual case, my operating assumption is that we should attempt to settle it in one day. It may be a long day, but I attempt to keep up the momentum and focus the parties on their responsibility to make decisions at the table that are in their own or their companies’ best interests. That means that the people at the table must be able to make decisions. On the employee’s side I often suggest that if a spouse or other person with a close relationship to the employee will influence the client’s final decision about whether to settle, that person should be at the mediation. No one wants to deal with second-guessing at the end of a long, hard day. The additional person may help to remind the employee of the value of settling and moving on. Spouses frequently do so, as did an employee’s mother, who attended a recent mediation and expressed her strongly-held belief that it was time for her daughter, who had been terminated, to stop obsessing about past wrongs and get on with her life. Even if a relative argues against settlement, the more obstreperous the voice, the more important it is to have it in the room where the mediator can confront it directly. On the employer’s side the decision may be more complicated. Unless the dispute involves a likely continuing relationship with the manager or supervisor whose alleged behavior prompted the dispute in the first place, it is almost always more productive to leave that person at home. He or she is not required as a witness; a mediation is not a fact-finding expedition. If the case settles, generally it will do so despite the parties’ continued disagreement about what happened in the past. The presence of the alleged discriminator or harasser in all likelihood will serve as a lightening rod to the employee. More importantly, it can present a constraint on the employer’s ability to settle the case. For example, a manager who terminated an employee may view a significant monetary settlement as a failure to vindicate the manager’s handling of the situation and hence a vote of no confidence. What I have found works best on the employer’s side is a fairly small team that will not overwhelm the employee, especially if the employee is bringing a single lawyer. The team should be headed by a company representative who is far enough up the corporate ladder to demonstrate to the employee that the company is giving serious, high level attention to the matter. Ideally, the official will have the interpersonal communicative skills to present the employer’s perspective to the employee and the mediator in a credible, humanizing way. If at all possible, the employer’s management representative should be able to make the final decision on whether to settle on the spot or to reach someone promptly by telephone who can do so. In situations where such instant authority is impossible to obtain, as where a government employer cannot legally or practically delegate the authority to settle or a settlement must be approved by a board of directors, the preferable solution is to get the needed authority immediately by telephone wherever possible; the fallback is to explain to the employee’s counsel before the mediation whatever approval process must be followed and give as much assurance as you can about the seriousness with which recommendations from the team at the table will be treated. In addition to the corporate decisionmaker it is often helpful for the employer to bring someone who is knowledgeable or creative about putting settlement packages together. In a dispute with a current employee that might be someone who is aware of placement or promotional possibilities; with a former employee it could be an expert on augmenting benefits, such as enhancing pensions or insurance coverage. Often these resource people can be consulted by telephone during the day; be sure you know where to find them after hours, particularly if they are in a different time zone. If the dispute involves proposed policy changes or comprehensive injunctive relief – often ingredients of settling class actions – different people with different areas of expertise may be required at different mediation sessions, which probably will stretch over an extended period of time. Ensuring some continuity in such situations becomes critical if all possible. At least one corporate representative should be a constant at each session, and all agreements reached should be documented contemporaneously and shared with the broad range of managerial officials whose cooperation will be needed to implement any changes in policy. I have mediated a class action where a company’s entire legal team, both inside and outside, changed during the course of the mediation before the parties had reached written agreements in principle. Consequently, members of top management later questioned whether they had assented to the changes and, even if so, whether it was feasible to implement them. Preparing the Client Both the employee and the corporate representative should be prepared to speak during the initial joint mediation session. In the case of a professional manager and/or a repeat player at mediation, it should be sufficient to go over the substance of the presentation with the manager in advance. If the employer regrets what has happened, an apology, stated sincerely and without prompting, can be enormously effective. (Obviously, the apology need not accept legal responsibility for whatever happened as long as it expresses empathy and concern for the employee’s welfare.) In the case of the employee, who very well may be very emotionally involved in the dispute as well as new to mediation, it is important to be crystal clear about what your client will say to the other side. This is the opportunity to make a sympathetic case; saying too little may be as detrimental as saying too much. The employer and its lawyer will be assessing your client’s credibility. And the client will have the opportunity– critical to some — to describe the dispute and its effect to the employer and to a neutral. Such an opportunity, and the emotional catharsis it can present, may be critical to settlement. One way to avoid surprises is to ask the client to write a narrative about what has happened and what the effect has been on the employee and the employee’s family. You then can edit it, attempting to remove personal attacks, which can be counter-productive, and making it as sympathetic as possible. Suggest that the client memorize it or, if necessary, read it at the mediation. Even with a relatively sophisticated employee, extemporizing generally should not be encouraged; there is too much at stake. Whoever the client, if mediation is a new experience, it is useful to explain the basics in advance, emphasizing that sensitive information may be shared with the mediator at the appropriate time and that there will be ample time when the mediator is meeting with the other party to consult with counsel and reassess strategy in light of new information. Stress the importance of keeping an open mind and responding flexibly as a team to opportunities for creative solutions that may present themselves during the mediation. If nothing else, the day of the first mediation session is an event. View it as such and encourage your client to do so as well. If you and the client use the opportunity to reflect on the matter at hand, analyze the client’s interests and priorities, learn more about the other party(ies) and develop creative possibilities, it will be a day well spent. At a minimum you should learn more about your own and the other side’s interests and arguments; at best, you will resolve the dispute. What I Want to Hear at the Mediation: Your Focus Different strategies make sense for the initial presentation, which, as mentioned above, should be prepared carefully in advance. The most important thing to remember about the opening presentation is that it presents an opportunity- perhaps the only opportunity in the life of the dispute – in the words of mediator Michael Lewis, “to make a pitch to the principals on the other side.” [fn: “Advocacy in Mediation: One Mediator’s View,” ABA Section on Dispute Resolution, Dispute Resolution Magazine, Fall 1995, p. 7] Generally the lawyer begins with a summary of events to date, a brief discussion of the legal situation and an expression of a willingness to listen and a desire to settle if possible. Alternatively, the client begins with a narrative (the employee) or an expression of regret that events have brought us here and a hope that the situation can be resolved to the satisfaction of all concerned (the employer). Although both lawyer and principal should speak, consider whether it makes sense to have the client begin. Displaying such openness and self-confidence may prompt the other party to respond in kind. Make the presentation as economical and as compelling as possible. Outline your legal theories very briefly; this is not the time for detailed analysis. If there is a timeline, an organizational chart or a map that can depict graphically your view of past events, by all means use it. One of the more effective presentations I have seen involved a presentation by counsel for a former employee charging sexual harassment of a ten-minute series of excerpts of videotaped depositions of the employers’ managers attempting to explain what had happened, replete with contradictions and weak excuses. Clearly the presentation caused the employer’s representative to view the case in a new way. The most important thing to remember during the opening statement is who the primary audience should be. You will have ample opportunity to talk to the mediator in caucus. For now focus on -and look at – the decisionmaker on the other side. Attempt to walk the fine line between confidence in your legal position if the dispute should fail to settle and the hope that, if everyone has an open mind and sufficient creativity and flexibility, the matter can be resolved today. If litigation-related or other events make it an especially propitious time to discuss settlement (if, for example, expensive, time-consuming or potentially embarrassing discovery is scheduled for the near future, the court is expected to rule on a motion for summary judgment or an administrative agency is about to begin an investigation), you might emphasize the fact that there is a narrow window of opportunity, after which resolution will become more difficult. The Lawyer’s Role During the Mediation: Your Strategy In addition to preparing the client and focusing on the other side during the opening statements, there are a number of strategic decision for counsel during the course of the mediation. Once the parties have made their opening statements, questions to clarify any ambiguity may be in order. Save probing or hostile questions for another time. (You may wish to discuss them with the mediator.) Some mediators will attempt to summarize what they have heard and ask for correction if necessary. Be alert to any reframing of positions by the mediator; it may contain implicit suggestions about how the mediator intends to structure the ensuing discussion. Correct any misstatement; this may be the last chance you will have to speak directly to the other side. Some mediators will wait for the private sessions to summarize and clarify the issues, not wanting to emphasize areas of disagreement this early in the process. In the initial private meetings with each party I look for three things: 1. Interests: What are the most important considerations for each of the principals? Can the interests be prioritized at this point? 2. Constraints: What do I need to know about limitations on your ability to settle based on time, resources, need for ratification or linkage to other negotiations? 3. Options: What has occurred to you so far about settlement possibilities, and what information do you need me to obtain from the other side that will help you to craft possible resolutions? In all of these areas, be careful to flag for the mediator any statements that should not be transmitted to the other side. At the end of each private session, go over any items to be sure that the mediator has understood. Avoid any ambiguity on this subject. Most mediators would greatly prefer to have you err on the side of openness with us and then discuss what it makes sense to share with the other party and how and when we should communicate any offers. The more trust you develop in our judgment, the greater latitude you may be prepared to give us in deciding when to reveal information to the other side. Whatever the particular approach, one thing stands out as the critical ingredient in the initial private sessions: this is the client’s chance to say to the mediator whatever it is that she did not say to the other party. It may be repetitive, it may not put the case or the client in the best light. Sort it out later. Obviously, it is the advocate’s chance as well. Yet the most frequent mistake that I have seen in the early stages of a mediator’s private caucuses is a lawyer who attempts to interject herself between the mediator and a principal (generally an individual), preventing the client from speaking. There can be two consequences – neither of them good. The first is that the client becomes frustrated with the lawyer’s controlling behavior. In one such instance a plaintiff pulled me aside to ask me privately, after her lawyer had interrupted her for what must have been the tenth time, whether I thought she should fire him on the spot. In such a case, when you need the client to listen to your advice (generally later in the session), which may be difficult for the client to hear in any event if the advocate’s analysis is less rosy than the client’s, the client turns you off. The second possible consequence of attempting to block communication between your client and the mediator is that it is likely to turn the mediator off. Instead of viewing you as an ally in attempting to achieve a beneficial settlement, the mediator starts to treat you as a hindrance. Although I try to work just as hard to achieve settlements for lawyers when I think that they are themselves becoming barriers to agreement, I cannot say that I am as effective. I do my best work when we are able to function as a team, both of us trying to craft the best possible agreement. Even though your role is to protect your client’s separate interests and mine to attempt to bring about a mutually acceptable settlement, our interests usually overlap almost completely. Both of us want to create as much value as possible and both of us want to paint your client and your cause in the best possible light to the other side. Think about enlisting the mediator to help you gain information or develop ideas. How much do you know about the other party’s interests and priorities? Would it make sense to develop a non-monetary option to meet some of those interests? Is there information about how the other party is thinking that will help you to evaluate its last offer or to craft your next one? How is a particular idea likely to be received? Listen attentively when we transmit information or opinions to you; we try to choose our words carefully. Does the mediator have ideas for breaking an apparent impasse? (I reject nothing out of hand as a last-ditch approach. If there has been little or no movement, this might be the time to discuss a risk analysis or a mediator’s proposal. (“If they would, would you”?) Most of the time it is useful for the mediator to communicate ideas and offers without attributing them to the other party, thus avoiding what psychologists call “reactive devaluation:” an idea is dismissed or an offer devalued if it comes from the other side. Occasionally you may want to communicate offers yourself, however, in order to develop options collaboratively, to gauge the reactions around the table or to be sure that you are being clear about particularly complicated ideas. This your call. In an ongoing mediation, encouraging direct contact with the other side may establish a good negotiating relationship. The down side is that you lose some ability to float ideas through the mediator in order to minimize reactive devaluation. Do not hesitate to suggest one approach or the other; mediators should be flexible enough to adapt different strategies and modest enough not to think that our words are the only ones that count. (We are immodest enough, on the other hand, to think that it makes sense to seek our advice on what strategy may be the most helpful.) As the mediation progresses the caucuses are likely to become shorter and more focused. The mediator may become less tolerant of a client’s rambling or focusing on past injustices and more insistent on looking towards the future and on what is likely to work as a settlement package. As mediator Michael Lewis has written, “A good mediator will pick up signals from an advocate that he or she believes the client is not acting out of his or her own self-interest. A good mediator will not permit a party simply to assert that he or she wants this or that. The mediator will return again and again to what the client and the advocate have identified as the core interests. The mediator can then explore whether the possible settlement meets those interests and what the likely litigation outcomes might be in a manner that provides the maximum amount of freedom for the client’s decision, but assures as much as possible that whatever decision the client makes will be an informed one.” [p.8] This narrowing of focus and greater discipline is intentional. You may need the mediator to help you deliver bad news. If you believe that a mediator is being too harsh on your client, however, it is your role to step in and be protective. There may be a fine line between discipline or focus and browbeating. You are the counsel and your client will look to you for cues. If, on the other hand, you believe that it might be helpful for your client to meet alone with the mediator or with the principal on the other side, with or without the mediator, feel free to discuss the idea with the mediator. (I almost never initiate such a discussion, believing that the lawyer is in a better position than I to know whether it would be helpful.) Sometimes a meeting without counsel helps a client to get a fresh view, which may buttress what the lawyer has been saying all along. Alternatively, on occasion a meeting between the mediator and one or all counsel, without principals, may be useful. During the mediation you can expect significant periods of down time while the mediator meets with the other party. Think about using at least some of this time to enlist your client in the effort to settle, to consider new information, and to be as creative and flexible as possible. If you are representing a plaintiff, you may decide to discuss some adjustment of your fee arrangement with the client based on what happens during the mediation. You also may have to deal with someone who has lived with a sense of victimization for so long that the case has become her whole life and it is extremely difficult to let go. When negotiating over monetary amounts, whether the money is for back or front pay, damages or attorneys’ fees, advocates frequently ask how much information they should share with the mediator. The answer depends on how well you know the mediator and how much you trust her, not only to keep information confidential but also to continue to work to achieve a settlement that meets your client’s needs. If you are comfortable with the mediator, you may save time by discussing financial goals and possible settlement ranges fairly early in the process. Be sure to differentiate between your goals and the mediator’s authority to convey particular offers to the other party. In a single-plaintiff dispute the mediation may last many hours. (Class action or other settlements involving substantial injunctive relief generally require multiple sessions, many of which may be shorter.) Most mediators dislike postponing the conclusion of the mediation until another day, except as a last straw, for fear of losing momentum. You and your client will grow tired. Where a client is disabled in some way and cannot retain the capacity to negotiate through a marathon session, you should alert the mediator in advance and make different arrangements. Through a long day you may need to bolster the client’s spirits and emphasize the progress that has been made; the mediator should help you to do this. Most mediators are optimists. We have seen persistence pay off enough times to give us faith in the process even though the parties may find it difficult to detect progress. If nothing else, you should be learning much about your own case and the other party’s view of it. Very few lawyers have found such knowledge not to be worth the effort. Reaching Agreement Ideally, you will create options and narrow differences until you reach an agreement in principle. Then what? All of us have horror stories of agreements we thought we had made only to have them crater because of last minute misunderstandings or demands. In order to prevent such mishaps it is the best practice to ask the mediator to go over the terms of agreement with both parties together to be sure that everyone has agreed to the same set of terms. The only remaining question is how much must be written down and signed before you leave the mediation. The extent to which an entire agreement must be reached and signed at the mediation varies with the circumstances: the complexity of the eventual agreement, the lateness of the hour, the efficiency of counsel, and the trust level between the parties and (perhaps more importantly in this instance) between counsel. Some lawyers recommend finalizing the agreement before leaving any mediation. Mediator and advocates Jim McGuire and Diane Kenty for example, advise lawyers to “document the deal on the spot. Too often a tentative deal unravels when the parties wait until later to reduce the understanding to a writing. Misunderstandings at that point may lead to charges of bad faith and, at a minimum, cost both sides additional time and money. The mediator can help smooth over language problems and ensure that the deal as documented fairly reflects the understandings that were reached.” “Practical Tips For Lawyers/Advocates Representing Clients In Mediation,” Massachusetts Lawyers Weekly, October 17, 1994). At a minimum if you have any doubts about the reliability of the lawyer or client on the other side, get something on the record that at least outlines the terms to which you have agreed. “On the record” does not necessarily mean a formal document; in fact, I have seen employees’ counsel revolt when the attorneys for the employer download twenty-page documents from their computer and present them at the eleventh hour. In order to avoid this eventuality some plaintiffs’ lawyers start to draft brief agreements, with blanks for the final terms, early in the mediation. The shorter the draft, the less likely it is to produce a negative reaction on the other side. The idea is to get the principals to signify their agreement to the essential terms of the agreement in some way that is meaningful to them. Whether such an agreement would be enforced by a court may matter less than that the principals believe that they have reached a final agreement and thus that the inevitable afterthoughts are just that. This goal can be accomplished in a number of ways: 1. You or the mediator can write a short agreement in principle, either on a computer or by hand, pass it around for corrections and have it signed. 1. You can do the same on a flip chart. Then use a copying machine to reduce the size. 1. I have recited agreement terms into a tape recorder and asked everyone present to identify herself and signify agreement orally. I keep the tape. When you Fail to Reach Agreement at the Table A long day ends; the parties are tired and out of sorts; no one has had a creative idea for hours; impasse appears inevitable. Although it makes sense to adjourn at this point, I always encourage participants to leave the door open. I cannot tell you how many times I have gotten calls from counsel the next day (or even driving home) with further thoughts. Sometimes the mere act of leaving the mediation and contemplating the no-agreement option causes people to rethink their positions; sometimes it is new information or an idea on the part of the mediator or one of the participants that comes only after a day or two of thought. Do not be afraid to suggest new possibilities for fear of appearing too eager to settle; if appropriate, the mediator can broach them as her own. If it is not new ideas but new information that is required, think through with the mediator how it can be obtained and what will happen as a result. Do not hesitate to call the mediator after you have left the table. Although most mediators believe fervently in face-to-face contacts early in the process, I have completed many agreements through telephone conversations after a mediation session. If the parties have opposite ideas about how a preliminary court ruling will turn out, perhaps it makes sense to ask the court to rule before resuming the mediation. Occasionally, a case evaluation by an expert or even by the mediator may be useful. If all else fails, you may want to consider whether another process, such as arbitration or final-offer arbitration would meet the parties’ needs better than a public trial. If not and it is early in the litigation process, you may want to consider the possibility of returning to mediation when you are further down the litigation road.