As published in The Chicago Daily Law Bulletin.
In my last column, “Mediation: Impassible”, I gave suggestions to break through impasse.
Mediators have to be able to deal with impasse but avoidance is the best strategy. Impassible can be pretty tough and, as they say in the movie, merely difficult should be a walk in the park.
In my last column, “Mediation: Impassible”, I gave suggestions to break through impasse.
Mediators have to be able to deal with impasse but avoidance is the best strategy. Impassible can be pretty tough and, as they say in the movie, merely difficult should be a walk in the park.
One tool I’ve found really helpful is pre-mediation telephone calls. It’s great because the lawyers can just talk to you without their clients hearing. Nothing is on the record. Nothing is official. Everyone understands the purpose. I try to set a relaxed and friendly tone and they usually follow suit. It’s pretty hard to talk over someone on a phone call. I like to start with a conference call including all parties. If there are a lot of parties, I would break it into several conference calls. Here are a few points to cover.
1.Headlines. I like to get the lawyers together on the telephone to hear the headlines. Talking informally off the record, what kind of case is it? Who are the parties? What’s the basic claim? I ask for a fairly neutral, general introduction to the case, something like a judge reads to a jury at the beginning of a trial. Usually, this gives us a good warm-up and gets everyone on the same basic page.
2.Where is the dispute? What is agreed? What’s sort-of contested? What’s deeply contested? The lawyers, careful to talk one at a time in an informal way, should each say how they see it. No argument. Just listing the issues. This really sets up the work that is going to be done at the mediation. Sometimes they will distinguish between what they think and what their client may think. I may ask about a particular point or two. By the end of the call, I know where the mediation is going and I’m starting to make a plan.
3. What’s the status of negotiations? It’s strange how many times the parties walk into mediations with very different ideas of what has been offered and what has been demanded. Sometimes loose discussion or indications are seen as formal offers. It’s really best to clarify exactly where the parties are before the mediation so there are no surprises starting off. Everyone should know all available policy limits and any disclosable issues about coverage.
4. Case status. Where is the case pending? Is there a trial date? How much discovery has been done? What else is left to do? What’s the schedule? How long do they have to complete? Are there motions pending or contemplated?
5. Who is attending? Will those with authority be present? Will they be available? Each side should know and, if there’s going to be a problem, it should be brought up in advance. How many mediations run into difficulty when late in the day it turns out the adjuster in New York left an hour ago? Or the lienholder is nowhere to be found? Or the husband needs to telephone his wife for her opinion of what to do? Sometimes there’s an “Uncle Charlie” who knows all about it and must be consulted. Sometimes the next layer of insurance hasn’t even looked at the case, hoping the SIR will cover them. Obviously it’s best to have all stakeholders there but if someone won’t be, it really helps when everyone knows in advance.
6. Collateral issues. Are there liens to handle? Is there a pending declaratory on coverage? Bankruptcy proceedings? Related civil cases elsewhere? Criminal case? Important issue on appeal? Motions? All need to be put on the table in advance whenever possible.
7. Submissions. Strong submissions help settle cases. Personally, I prefer shorter, more focused submissions with excerpts and highlighted portions of records than volumes of unrelated entries or testimony. I like visuals. I like videotape. Parties should be reminded that a submission is a persuasion document, not a 90 (c) package. And remind the lawyers that a case doesn’t settle because a party has convinced the mediator. Settlement requires convincing the opponent. I encourage the parties to exchange submissions but send anything confidential separately to me. Whatever the parties want should be discussed and agreed to.
8. Gaps. Does anyone need anything from another party beforehand? Many mediations don’t complete because someone still needs something from someone. This telephone call is the time to say that. Missing pieces may make it harder to get deals. Discussing it in advance can at least remove the feeling that someone is merely stalling when they bring it up later in the mediation.
9. No-no’s. Will there be any elephants in the room—overwhelming or sensitive issues no one wants to acknowledge? Is there anything to be sure not to say to someone?
10. Process. Is there anything they do not want to do in the mediation like opening statements or a simple meet-n’-greet? Is there anything they do want to do like meeting and discussing separately from another party or client? How long are people available? Is there anything I can do to use our mediation time most efficiently and get a successful result? If we don’t get a deal, will we be talking about follow up.
11.Separate calls. Would they like to talk with me separately beforehand? May I call each separately if I have questions later? Sometimes, I do want to talk with them separately. That may happen after I read the submissions. I may not really understand some of a party’s strengths or weaknesses. I may see something obviously lacking or confusing. I may think one or both sides may benefit from bringing in cases or Jury Verdict Reports or standards. I may feel it would be helpful if someone else could attend.
Well begun is half done. Mediation work best when the parties feel like they are working together to solve a mutual problem. Pre-mediation telephone calls get the parties working together to a great beginning.
1.Headlines. I like to get the lawyers together on the telephone to hear the headlines. Talking informally off the record, what kind of case is it? Who are the parties? What’s the basic claim? I ask for a fairly neutral, general introduction to the case, something like a judge reads to a jury at the beginning of a trial. Usually, this gives us a good warm-up and gets everyone on the same basic page.
2.Where is the dispute? What is agreed? What’s sort-of contested? What’s deeply contested? The lawyers, careful to talk one at a time in an informal way, should each say how they see it. No argument. Just listing the issues. This really sets up the work that is going to be done at the mediation. Sometimes they will distinguish between what they think and what their client may think. I may ask about a particular point or two. By the end of the call, I know where the mediation is going and I’m starting to make a plan.
3. What’s the status of negotiations? It’s strange how many times the parties walk into mediations with very different ideas of what has been offered and what has been demanded. Sometimes loose discussion or indications are seen as formal offers. It’s really best to clarify exactly where the parties are before the mediation so there are no surprises starting off. Everyone should know all available policy limits and any disclosable issues about coverage.
4. Case status. Where is the case pending? Is there a trial date? How much discovery has been done? What else is left to do? What’s the schedule? How long do they have to complete? Are there motions pending or contemplated?
5. Who is attending? Will those with authority be present? Will they be available? Each side should know and, if there’s going to be a problem, it should be brought up in advance. How many mediations run into difficulty when late in the day it turns out the adjuster in New York left an hour ago? Or the lienholder is nowhere to be found? Or the husband needs to telephone his wife for her opinion of what to do? Sometimes there’s an “Uncle Charlie” who knows all about it and must be consulted. Sometimes the next layer of insurance hasn’t even looked at the case, hoping the SIR will cover them. Obviously it’s best to have all stakeholders there but if someone won’t be, it really helps when everyone knows in advance.
6. Collateral issues. Are there liens to handle? Is there a pending declaratory on coverage? Bankruptcy proceedings? Related civil cases elsewhere? Criminal case? Important issue on appeal? Motions? All need to be put on the table in advance whenever possible.
7. Submissions. Strong submissions help settle cases. Personally, I prefer shorter, more focused submissions with excerpts and highlighted portions of records than volumes of unrelated entries or testimony. I like visuals. I like videotape. Parties should be reminded that a submission is a persuasion document, not a 90 (c) package. And remind the lawyers that a case doesn’t settle because a party has convinced the mediator. Settlement requires convincing the opponent. I encourage the parties to exchange submissions but send anything confidential separately to me. Whatever the parties want should be discussed and agreed to.
8. Gaps. Does anyone need anything from another party beforehand? Many mediations don’t complete because someone still needs something from someone. This telephone call is the time to say that. Missing pieces may make it harder to get deals. Discussing it in advance can at least remove the feeling that someone is merely stalling when they bring it up later in the mediation.
9. No-no’s. Will there be any elephants in the room—overwhelming or sensitive issues no one wants to acknowledge? Is there anything to be sure not to say to someone?
10. Process. Is there anything they do not want to do in the mediation like opening statements or a simple meet-n’-greet? Is there anything they do want to do like meeting and discussing separately from another party or client? How long are people available? Is there anything I can do to use our mediation time most efficiently and get a successful result? If we don’t get a deal, will we be talking about follow up.
11.Separate calls. Would they like to talk with me separately beforehand? May I call each separately if I have questions later? Sometimes, I do want to talk with them separately. That may happen after I read the submissions. I may not really understand some of a party’s strengths or weaknesses. I may see something obviously lacking or confusing. I may think one or both sides may benefit from bringing in cases or Jury Verdict Reports or standards. I may feel it would be helpful if someone else could attend.
Well begun is half done. Mediation work best when the parties feel like they are working together to solve a mutual problem. Pre-mediation telephone calls get the parties working together to a great beginning.