The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation
One of my biggest complaints is that some lawyers (and perhaps clients) just don’t get it—that it takes considerable effort and preparation to make the mediation process work. I have written before on what it takes: a common and good faith interest in mediation, an exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date, the presence of those with authority to settle (with real authority please!), and a level of candor and disclosure that allows the parties realistically assess the other side’s position.
I have also stated that perhaps the most important trait of a good advocate (also the mediator) in mediation is listening to what the other side has to say, along with carefully assessing the position counter to the client’s. If this is done—and it should be if counsel’s representation in mediation is to meet professional standards—then there will be a full discussion and exchange of information before and during the mediation so that the chances of settlement increase.
I am not alone. In an article by the Honorable James L. Cott, a Magistrate Judge in the USDC, Southern District of New York, “The Do’s and Don’ts of Settlement Conferences,” in the Winter 2016 issue of Litigation, the Journal of the Section of Litigation of the ABA (Vol. 42, No. 2), the author provides this list describing what is required to be ready and effective at mediating:
• Think about the case from the other side’s perspective.
• Don’t wing it.
• Bring documents and key evidence.
• Be as candid as possible in any pre-settlement submissions to the court.
• Be prepared to make an opening statement.
• Make a demand and engage in real negotiations before coming to the courthouse.
• Don’t bring someone without ultimate authority to settle.
• Don’t’ make the court manage your client’s expectations.
• Anticipate all the materials terms of the settlement before the conference.
• Don’t just come with a bottom line – be willing to be flexible and creative.
Most of these points seem obvious. They are. So why would Judge Cott repeat them? My guess is because his experience is that lawyers representing client’s in mediation are not doing their jobs correctly and are taking the mediation process too lightly.
From the plaintiff’s perspective, it is a waste of time and money to participate if the defense is not prepared. That does not take place unless the plaintiff—well in advance of the mediation date—and lays out the client’s case fully and candidly—again with key exhibits and expert reports, not just conclusions and arguments without evidence to support them.
From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and reports obtained. That has to be done well in advance of the mediation date. This is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process.
Indeed, as I sit here today, we just confirmed a mediation to take place in a bit over two months from now. I started the preparation process today by scheduling a meeting with our firm’s associate helping me and the client along with another lawyer who is involved so we can outline what needs to be done, confirm our objectives for preparation, and assign our tasks.
There is another point to consider: One of the important items I have on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I may ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome, if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.
By the way, there are two other good articles in this same edition of Litigation.
The first article, “Making Certain the Settlement You Intend is the Settlement You Get,” by Robert Hugh Ellis of Dykema Gossett PLLC in Detroit, stresses thinking through the terms of your settlement and making sure all aspects are clearly covered so the deal you expect is the deal you get. Indeed, a deal may not be a deal. He emphasizes two points: first, think through the terms of the settlement so that you can be sure that any “term sheet” incorporates the material terms; and second, if the agreement at the mediation is not intended to confirm that a settlement has been reached until a final formal settlement agreement is reached, then say so in the term sheet. In short, make sure you understand what “finality” means.
The second article, “The Seven Deadly Sins of Mediation,” by Joel Levine, an experienced mediator, explains how to avoid self-inflicted wounds in mediations. These include:
• Not Preparing.
• Choosing the Wrong Mediator.
• Not Preparing the Mediator.
• Not Preparing the Client.
• Not Asking the Mediator for Help.
• Insulting Everyone.
• Lack of Clarity.
Finally, Judge Cott repeats this quote from Abraham Lincoln – which is one of my favorites and which I have in my book on negotiations (see bio):
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, and expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.
Good Mediating. . .
Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is also a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. You can order his latest book HERE.See also the review of his book HERE. His firm’s website is www.kcehlaw.com. Mr. Kornblum is a strong advocate for mediating his client’s cases before going to trial or arbitration.