PROCESS
When mediation consists primarily of trading demands and offers, the reactivity inherent in litigation can unintentionally be exacerbated. Structuring the process instead as an evaluative dialogue between each party and the mediator can mitigate reactivity, allowing for a more objectively reasoned evaluation of risks and options.
Our mediation process generally proceeds in three stages:
Briefs are submitted—either in confidence to the mediator or exchanged, at the election of the parties—approximately two weeks before the scheduled mediation date.
The disputes that come our way usually involve significant deltas in settlement positions. It is asking too much of decision-makers to modify firmly held positions to the degree necessary to bridge such significant gaps without a reasoned basis for doing so.
When the time comes to speak in confidence with each party during the caucus phase of the mediation, part of our job will be to provide that basis through an evaluative discussion of the points that are likely to drive the decision of a jury, judge, or arbitrator.
For our input into that dialogue to be credible, it is incumbent upon us, in preparation for the mediation, to put in whatever time it takes to fully assimilate the critical legal and factual issues. Review of the briefs, supplemented when appropriate by our own research, gives us the basis we need to do that part of our job.
The mediation starts with everyone together in joint session.
Each side will be given the opportunity to set forth how it sees its position. The mediator then summarizes the presentation back to confirm that nothing has been missed or misunderstood.
This serves two critical functions.
First, while positions may have been exchanged ad nauseam in the course of litigation, the impact of reactivity is so profound that often little real communication has taken place. When the mediator can succinctly summarize back a presentation of some length and detail, it reassures that party that it has been heard and understood, and that the mediator did indeed take the time to read and assimilate its briefing sufficiently to have accurately tracked the presentation.
Thereafter, in caucus, if the risk evaluation articulated by the mediator differs markedly from the view held at the start, there is some basis for giving that feedback credence.
Second, the opposing side—having been mentally counter-punching throughout its opponent's presentation and thus taking little of it in—is usually listening intently to gauge what the mediator has taken away from the presentation.
Ironically, even in heavily litigated cases, this is often the first time the decision-makers have truly heard—rebounded through the mediator—the basis for their opponent's position.
Of course, we do not aspire to establish agreement between the parties in joint session, only a degree of clarity regarding what is keeping them apart.
Robust evaluation of issues and options is essential to finding a path to resolution.
The caucus provides a safe space to hear devil's advocacy on risks, share information that may inform or constrain settlement options, and identify options without fear of compromising future negotiating positions.
This is an iterative process. Caucusing will continue until it is no longer generating movement toward resolution and it has become clear which issue or issues—out of the many the parties have been disputing—are actually driving the delta in settlement positions.
At that point, the mediator should be able to introduce a proposal for resolution under a protocol that assures each party can respond initially in confidence, without the risk that it might leave without an agreement but burdened with a new floor or ceiling on future settlement negotiations.
This process has been field-tested for decades. While counterintuitive to those accustomed to the time-honored progression of position bargaining, it has resulted in thousands of settlements in disputes ranging into the billions of dollars.
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OUR PROTOCOL
Disputes can be resolved at any stage of the litigation process, from pre-filing to appeals. If you have questions about timing or how to raise the subject of mediation with the other side, please contact us. We may have worked previously with opposing law firms or parties, and we can provide references to facilitate agreements to mediate.
Once the decision to mediate has been made we will need confirmation from all parties before setting a date. Most cases require only one day of mediation.
If you feel that more than one day is necessary we can help evaluate whether it is preferable to schedule consecutive days or to conduct a preliminary session some time in advance of the final session (to clarify, for example, what issues are driving disparate settlement evaluations, or whether any given settlement option implicates unanticipated tax, accounting or other corporate issues).
Consider whether you should share data in advance that realistically cannot be adequately evaluated on the day of mediation. If you anticipate that the non-monetary terms of a settlement might be complex, exchanging drafts can avoid a tedious drafting exercise at the end of a long day of negotiations, as well as surfacing issues that might benefit from input from parties not in attendance at the mediation.
The single greatest determinant of success is having the real decision makers with final settlement authority personally attend the mediation. We cannot overstate the importance of this factor. Nominal authority without real discretion does not work. Beyond that, it is a judgment call whether attendance by percipient or expert witnesses will be helpful.
Briefs are customary. Please try to keep the text to ten pages and strike a balance on exhibits to minimize the risk that we miss a critical page in a sea of documents.
Some disputes lack well-defined decision making structures or need advanced work to develop the data necessary for identification or evaluation of settlement options. Too often parties embark on lengthy and expensive processes without a clear understanding of what will ultimately prove critical for a successful resolution. We are experts at closure. Having resolved thousands of disputes over the course of several decades we know what facilitates and what can interfere with settlements. We can help you to construct an efficient process to reach resolution.