Meditate Before You Mediate · 2012. 12. 20. · If you do not have recommendations of mediators, then you could start with an internet search. Many mediators belong to state or other

BE FLEXIBLE POSECREATIVE SOLUTIONS POSE

12 WAYS TO POSITION YOURSELF FOR SUCCESS

MeditateBefore You

Mediate:

FOCUS ON THE FUTURE POSE ACTIVE LISTENING POSE

BY DAVID M. COHEN

Mediation is becoming a popu-lar method to avoid the costs and risks of litigation. It can em-power the parties involved to voluntarily resolve their dispute when negotiations directly be-tween them or their counsel are unsuccessful. Parties tend to be more accepting of a solution that they craft, rather than one handed down by a court or arbi-trator. Preparation for mediation differs from that for a trial.

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Below are a dozen ways to position yourself for a successful mediation:

1. Analyze your and the other parties’ end goals. Realize that positions don’t necessarily reflect interests and goals. For example, a party’s position may be that it is entitled to $50,000 because your company failed to deliver certain equipment, such as a truck. The other party’s ultimate goal may be transporting its product to market. A resolution could be that your company provides transportation services at an agreed-upon rate, or provides other transportation equipment that may be more suitable to the other party. The parties can work toward a “win–win” solution.

2. Have individuals with authority to settle present at the mediation. One of the major advantages of mediation is each party hearing the other’s position face-to-face, unfiltered. Ide-ally, the negotiators should come prepared with pre-approved fall-back positions. Calling back to the main office to get approval may be necessary in certain cases, but the person on the other end of the phone can’t get the full impact of the presentation, as they aren’t there to hear directly from the other party, or to pick up on their various cues (voice inflection, body language, etc.). Also, being present provides the decision-makers with the opportunity to see what they are up against, which may encourage settlement. If you must rely on an absent authority for certain decisions, meet with the individuals that you will need to contact prior to the media-tion so they fully understand the issues, the views of the

parties, and the best and worst alternatives to a settlement. You don’t want the other party to the mediation being frustrated about your inability to get a response from the home office. Arrange in advance for the approver to be (a) on-call at the time of the mediation, and (b) prepared to make a timely decision.

3. Be realistic. Hopefully, you are going to mediation because you have decided that reach-ing an agreed-upon solution is preferable to going to war. Most likely, no party is going to get everything they want. Each party needs to weigh the benefits of a proposed settlement against the possibility of success in litigation, and the costs (including the costs of your company’s personnel having to devote the time associated with litiga-tion) of litigation.

4. Develop a strategy, but be flexible. Media-tion is a process that is difficult to shortcut. The other party will be thinking that you have some-thing yet to offer. If your maximum settlement authority is $50,000, you don’t want your first

offer to be $50,000. Try to develop creative solutions and be open to solutions offered by the other party.

5. Determine what you want from your mediator and discuss it with them prior to the mediation. There are generally considered to be three types of mediation — trans-formative, facilitative and evaluative — although they are more of a continuum than three distinct methods. If you are expecting a mediator to promote a dialogue between the par-ties, but do nothing more, this needs to be explained to the mediator. As is discussed in the sidebar, you need to discuss your vision of the mediation with prospective mediators and question your prospective mediator. If you don’t, you may find yourself in a mediation that leaves you and your client disappointed and unsatisfied.

6. Carefully select the company representatives to attend the mediation. Although personal attacks are not helpful (see item 12), one of the benefits of mediation is to provide a forum for individuals to vent in a controlled setting. The parties often say that the dispute is about the money, but it is often about more. Even in commercial disputes, it can be about one party feeling that they were treated unfairly. After the venting is done and the party feels heard, they may be more open to listening to possible solutions. Your represen-tatives and attorneys need to be prepared to hear statements from the other party that they find offensive, but still listen respectfully in order to move toward a resolution — not the door. You may wish to conduct a brief prep session with your company representatives before the mediation, not only to prepare the substantive positions but also to emphasize the benefits of active listening and composure.

DAVID M. COHEN is a former in-house

attorney for American Electric Power, where he

specialized in contract law,

business law, mineral law and

transportation law. He is now providing

mediation services as Cohen Dispute

Resolution Services, LLC. He received his BSBA from The Ohio State University and

his JD from the Moritz College of Law at The Ohio

State University. He can be contacted at

davidcohenmediation @gmail.com.

If you believe that it would be beneficial to require me-diation before going to litigation or arbitration, then you may want to add a clause such as the following to your initial contract: “Before commencing litigation, each party agrees to notify the other party of any dispute arising out of or relating to this Agreement, and to attempt to resolve any such dispute by negotiation. If the parties fail to reach a resolution within thirty (30) days of any such notice, the parties agree to endeavor to resolve the dispute through mediation. A party may commence a mediation proceed-ing by a written notice to the other party or parties. The parties agree to utilize good faith in selecting a mediator, scheduling the mediation and participating in the media-tion. Expenses of the mediation, excluding legal fees, shall be divided equally by the parties.”

Sample Mediation Provision

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Determine the role that you want the mediator to fulfill. Do you want a mediation in which each party presents their positions, with the mediator insuring that each party is heard and understood, but with little or no input by the mediator? Do you want a mediator to play the “devil’s advocate” role and quiz each party about the soundness of their position? Do you want a mediator who is willing to express his opinion on the positions taken and offer possible settlement options? Do you want a mediator to provide his opinion on who will prevail if the parties would litigate the issues? This may be more like a less formal non-binding arbitration. Determine whether you want a mediator with a particular expertise. Remember that the mediator does not make a decision. He controls the mediation process and works with the parties to develop a voluntary, and thus mutually agreeable, resolution. Mediators will often ask each party to send them a position paper prior to the mediation setting forth the party’s explanation of their positions, including an explanation of their position on legal questions, and then telephone counsel to receive any clarifications that they believe would be helpful. As a result, in many cases, particular expertise may be unnecessary. If the issues concern very specialized subjects, such as patent rights or issues that would make knowledge of building construction techniques helpful, then you might want a mediator who is an expert in those fields. Mediators come from various backgrounds. You might settle on a mediator who is an engineer, but not an attorney, or both an engineer and attorney.Determine the training and experience of the mediators that you are considering. Mediation is much more than the parties sitting in a room and rehashing their positions. Most states do not have “mediator requirements.” Thus, there are people who advertise their services as a mediator, but have no mediation training. As a result, they might not be knowledgeable about the mediation process.Start your search by contacting other in-house counsel, and outside counsel, for recommendations. If you do not have recommendations of mediators, then you could start with an internet search. Many mediators belong to state or other mediator associations. Each mediator will probably have a short description of their mediation philosophy and experience at the association website. Also, many mediators are listed in Mediate.com, and you can view prospective mediators’ websites and LinkedIn profiles.

In the event of pending litigation, check to see if the applicable court maintains a roster of mediators. If so, what are the court’s requirements for being placed on the roster? Also, some courts have mediators on staff or have their magistrates act as mediators. If you are considering using a court mediator or magistrate, there may be no charge to the parties for the mediation. You should discuss how the staff mediator or the magistrate conducts mediation, and determine how the parties will view the mediator. Parties should be free to provide confidential information to the mediator that will be shared with the other party or parties. Could the magistrate that will conduct the mediation also hear your case? A court mediator or magistrate may be unwilling to offer suggestions or play “devil’s advocate” out of a concern of being viewed as biased. A party may think that if they do not accept a magistrate’s suggestion and the dispute goes to trial, the magistrate might hold that rejection against them.Talk to the mediators and evaluate how you believe your client will view and interact with the mediator. Like many business relationships, the ability of the parties to trust and establish a rapport with the mediator is important. If you or your client doesn’t trust the mediator or believes that the mediator is biased against your client, it will be difficult for the mediation to be successful.Check references. A mediator should be able to provide you with references, who can give you additional information about how the mediator conducts mediations.Review the terms of any proposed contract. The mediator should be able to provide you with the terms of a proposed agreement, including any required deposits, cancellation fees, hourly fees and travel charges. Ensure that the mediator’s availability will meet your schedule and determine an agreeable location for the mediation. Generally, the contract will provide that if the parties reach an agreement prior to ending the mediation, the mediator will draft an agreement incorporating the agreed upon terms, incorporate any changes to the draft agreed upon by the parties, and request that the parties execute the agreement. If counsel and the parties prefer a more complete document, the agreement may contain a provision that one of the counsel will draft a further agreement consistent with the terms of the agreement drafted by the mediator, and provide it to the other party’s counsel within a specified time-period.

How to Select a Mediator

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7. Carefully select which of your counsel will attend the mediation. An aggressive attorney may be what you want in court, but not in mediation. Being overly aggressive can be destructive to mediation. Therefore, you want counsel who can help develop creative solutions and not be offen-sive to the other party. Counsel should be of assistance to, and not an impediment to, reaching a settlement.

8. Consider an apology. As mentioned, sometimes dis-putes are largely about one party feeling disrespected or otherwise offended. A sincere apology costs nothing and can go a long way toward resolving a conflict.

9. Focus on the future, not the past. Each party has their view of what has happened. Chances are, no mat-ter how long the mediation lasts, a party is not going to change their view. Unlike litigation, the past doesn’t matter. All that matters is what the parties will agree to do going forward.

10. Focus on solutions, not legal issues. Yes, each party will probably say that they believe that they have a strong case and will win. Saying that once is fine. Continuing to say that does not move the parties toward settlement. Again, this is not litigation. It makes no difference whether you think your side has the better legal position. Preserving a business relationship between the parties is probably more important than having the superior legal position. While your view of your case will affect what you will agree to do, the validity of your legal position is largely irrelevant for purposes of craft-ing a settlement.

11. Determine what roles counsel and the business representatives will play. I find it preferable for one of the company representatives, rather than counsel, to explain the facts and the company position. Counsel can explain any legal positions. In the end, it is the company representa-tives who decide whether or not to approve a settlement. As mentioned above, one of the benefits of mediation is that it provides a forum for the clients to speak, vent and be heard. As a result, if the business representatives fully participate, they are more likely to view the mediation favorably.

12. Avoid personal attacks. As mentioned above, allow-ing a party to vent is one of the benefits of mediation. That being said, personal attacks do not help to promote settle-ment. You can explain what happened without them.

Mediation provides the parties the opportunity to volun-tarily resolve disputes for their mutual benefit. More than 90 percent of the cases settle. So, why not settle sooner?!

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Quick References Achieving Your Goals Through Successful Mediation (Feb. 2012). www.acc.com/quickref/success-mediation_feb12 What Happens at the Settlement Table, Stays at the Settlement Table (Feb. 2012). www.acc.com/quickref/settlement_feb12Litigation v. Arbitration v. Mediation Comparison Spreadsheet (Oct. 2011). www.acc.com/quickref/lit-arb-med_oct11

Top TenTop Ten Things to Consider When Using Mediation for Alternative Dispute Resolution (May 2011). www.acc.com/topten/mediation-adr_jan11

Presentation Alternative Dispute Resolution — What Works? (May 2011). www.acc.com/dispute-res_may11

Education ACC’s 2012 Annual Meeting features an entire track of programs on litigation and dispute resolution. For information specific to mediation and arbitration, check out sessions 500, “Top 10 Issues to Consider before Resolving an Employment Dispute,” and 1007, “Muscular Arbitration: What Corporate Counsel Can Do to Shape Up Arbitration.” Register at http://am.acc.com and join us Sept. 30 – Oct. 3 in Orlando.

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ACC Extras on… Successful Mediations