Mediation Briefs - Part I :
When you prepare a brief for mediation remember it is not a trial brief.  The mediation brief is different.  Use a simple statement of the facts for the mediator.  For example, "this is a partnership dispute between partners who own three commercial properties."  A three page discussion of when the partnership was formed, who is who, when each of the properties was purchased and the legal description of the each property is probably not necessary for the mediator to understand the conflict.  Use descriptive words.  For example, seller – buyer, builder – owner, instead of the parties names.

Mediation Briefs - Part II :

As mentioned in last month's tip, remember to prepare a mediation brief, not a trial brief.  Use the mediation brief as a place to list discussion points instead of making arguments.  You may need to cite some law, but keep it straight forward.  The mediator is looking points to discuss with the participants.  It may be good to just keep it simple – “liability is an issue in this case because (a). . . (b) . . . and  (c) . . ..”

Preparing your Client for Mediation:

Do you prepare your client for his/her deposition?  Do you spend more that a few minutes discussing what will happen in the deposition?  Do you review tactics for the deposition?  If your answers are yes, Yes and YES!; then talk with your client about the mediation.  Be sure you enter the mediation with your client prepared not to let the last, best and final offer pass if it is a good result for your client and elect instead to proceed with the expense, uncertainty and anxiety of trial.  If you do prepare your client for the mediation you will achieve much better results and will have happier clients.

Creative Solutions:

In preparing for mediation it is a good idea to develop alternative solutions or outcomes for your case. Creativity is king. A good mediator will instinctively find creative solutions. Since you, as the lawyer, have been dealing with the controversy, you are best able to prime the pump. You can read the case law and predict what the court will or will not do, but in a mediation all the boundaries for resolution are swept aside. The slate is clean and open to fresh solutions.

Avoiding Emotional Eruptions:
Consider emotional issues and how to deal with them in the mediation.  Sometimes, especially when family, neighbor or partnership relationships are involved, the participants may be best served if they are separated during mediation. When faced with this situation, notify the mediator before the mediation, so the mediator can handle the separation smoothly. Hot tempers at the beginning of the mediation require the mediator to spend time cooling them down. 

Consider using objective descriptions of events and facts rather than emotionally charged allegations in your brief and oral presentations which can rekindle emotion from your client.  Remember the mediator is not a judge or arbitrator – you do not need to get the mediator invested with the emotion of your client’s position. 

Prepare your client to resolve the controversy.  Help them understand that this may be the only opportunity where they will control of the process and the outcome. 
There are two basic reasons matters fail to resolve at mediation: ignorance and anger. Ignorance can arise, for example, when a participant does not understand their own case or the other side’s.  Ignorance can arise when a participant does not understand the law and how it will be applied in their matter.  Anger can be focused on the other participant(s), the situation from which the controversy arises and sometimes arise from ignorance.  Try to understand what you must do to educate your client and why s/he may be angry.

The Premature Mediation:
Evaluate whether the mediation is premature.

If critical facts or participants are missing, the answer is yes. However, not all facts or participants are critical for a successful mediation.  Often a mediation can proceed without all the facts, witnesses and issues being fully evaluated.  Remember you do not need all of the details that you need for trial at the mediation.  If you do not have some of the material facts, determine how to work around them. 

Most mediators will quickly gain a sense of whether the mediation is premature.  If so, they should stop the mediation, assign homework, and set a new date to reconvene. These assignments sometimes lead to a resolution of the controversy.  Be prepared to have the mediator assist you with gathering the information or documents that you may need to resolve the conflict.  The mediator can often solicit cooperation from the lawyers involved, but it helps when the lawyers know what they need and explain their needs to the mediator. 
When do you do this?  Ideally, you do it when you discuss convening the mediation with the mediator.  But if in preparing for the mediation you determine that there are critical documents, facts or participants needed; talk to the mediator or bring up these issues when the mediation first begins.  When this is done and all the parties work together to resolve how the mediation can move forward even without some material information you will have achieved a breakthrough – the parties will be working together and moving forward on the case.  This movement is what the mediator lives for and is the foundation for ultimate resolution of the controversy.

Mediation May Result in a Better Outcome:
Use the mediation to help your client’s case.  Not all cases resolve at mediation.  According to Julie Bronson, the ADR administrator for the Los Angeles Superior Court, 60 percent of the matters sent to mediation in 2003 resolved with either a full or partial agreement of the participants.

Be prepared to reevaluate your perception of your client’s case.  A good neutral will give you the benefit of an unbiased opinion about the strengths and weaknesses of your case and can help you assess the opposition’s case.  Make sure you understand what the neutral has told you rather than let your own arguments blind you.  At the mediation you and your client have the greatest control over your case.  You can direct and focus the discussions, the alternative solutions that are considered and the outcome.  Don’t miss the opportunity to use that control to your client’s advantage to possibly achieve a result that may not even be available at trial.  Viewing the mediation as just another step in the trial process is a mistake – mediation should be considered as the prime opportunity in the litigation process for your client to achieve what they desire.

Keep Notes on Mediation Progress:
Be sure you follow the progress of the mediation and the agreements that have been reached.

Sounds simple enough, but often the mediator will break down the discussions into separate topics.  Achieving agreement on a number of small points begins moving the participants towards a resolution of the case.  But remember the small agreements accumulate.  If at the end you or your client have forgotten about a prior point you agreed to, changing your mind late in the mediation may result in the other participants refusing to go forward and can in some cases cause the entire mediation to break down. 

I suggest that you keep a separate page where you note the agreements that have been made.  I also suggest if the mediation is complex or taking a large amount of time that you review the agreements from time to time to be sure that every participant agrees to all of the points.  As other points are agreed to write those down on your agreement page.

15-Second Non-Verbal Skills Course:
Here are some general points of non-verbal communications issues that may assist you in your mediations: 50-70% of all communications is non-verbal.  70% of what a person remembers is what they see.  Your first impression of your client, the mediator, your opponent is their first impression of you.  A person’s body and their body language is usually an honest reaction to what they are thinking at the moment.  Body language can send mixed signals as when they are saying one thing, but their body is indicating another. 

If you find this helpful and would like a 45-second non-verbal skills course, send me an e-mail:  ed@mediationphelps.com