By Kent B. Scott and Cody W. Wilson
How Do We Get Started?
There are many things for counsel and the client to do prior to mediating. A key task is to prepare the client to participate in the mediation. This is essential to a successful mediation outcome, because unlike arbitration and litigation, in which counsel for the parties do most if not all of the talking, mediation involves client participation. However, some clients feel more comfortable than others in representing its interests.
Other tasks include determining whether there is any reason not to hold a joint session, identifying the documents and information to be exchanged, who should attend the mediation on behalf of the client, whether one or more experts will be needed, who the ultimate decision makers will be who must attend the mediation on the client’s behalf because without them the dispute cannot be settled.
Preparing the client for mediation
Clients need to know what to expect at the mediation and how to conduct themselves. They need to know that mediation is less adversarial than other processes, and they should be prepared to be civil and even pleasant to the adversary during joint sessions and leave their anger at the office. Venting can take place in private sessions with the mediator.
Prior to mediation the client and counsel should identify the strengths and weaknesses of each side’s case. Some counsel fear that by helping the client see weaknesses in its own case, they will be perceived to be less than a zealous advocate. So some attorneys leave this task to the mediator. But a client who has a realistic view of the case when he or she walks in the door is in a position to reach a settlement much sooner.
Since the mediator will try to learn what each side would desire as a settlement and what needs and interests a settlement would have to satisfy, the client should try to identify these items prior to the mediation. This will help the mediator and the client develop proposed options for settlement.
Discussions concerning information to be revealed
The client and counsel discuss the information and documents to be exchanged with the adversary and what will be revealed in the client’s mediation statement. A mediation statement presents a party’s view of the facts and the applicable law. Whether the parties’ mediation statements will be given only to the mediator or exchanged by the parties will be decided before the mediation by counsel for the parties and the mediator. Mediators usually will ask the parties to prepare confidential mediation statements to be viewed only by the mediator. Where appropriate, the parties can agree to exchange their mediation statements with each other.
The mediator may ask the parties’ attorneys to prepare confidential summaries of the strengths and weaknesses of each side’s case and their objectives for the mediation. Counsel and the client should discuss how much confidential information to initially disclose to this statement, as well as in the private caucus. The client’s views on this could change during the mediation as the client develops trust in the mediator.
The mediator will determine how far in advance of the mediation the mediation statement and any confidential summaries should be submitted. These documents ultimately will educate the mediator so that he or she can engage in “reality testing” and help the parties assess the offers and counteroffers that will be transmitted by the mediator during the mediation.
Decisions concerning mediator selection
One of the most important decisions to be made in mediation is deciding who should be the mediator. Counsel and client should discuss the qualifications desired in the mediator. This can include mediation skills as well as subject matter expertise in the area of the dispute. Counsel should explain the difference between an evaluative and facilitative mediator so the client can determine what kind of mediator it would like.
When preparing the client for mediation, it is not necessary for the client to know what its final offer or demand would be. Indeed it is better to be flexible and not have reached this point. However, the client should be made aware of the alternatives if the mediation does not result in a complete settlement so that when the mediation actually takes place, the client can weigh those alternatives, especially if the parties end up in an impassesituation.
Part VII of this series will discuss dealing with the mediator and theopposing party. Stay tuned.
[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]
Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.
Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at firstname.lastname@example.org and email@example.com.