Dispute Resolution (ADR) is a system of processes designed to assist parties in resolving their disputes economically and more quickly than the traditional court system. Its value lies in reducing the time, cost and uncertainty in the civil justice system. The key to achieving successful results in ADR is preparation. The following represents the basic steps for an attorney to prepare for a mediation hearing.
CHOOSE THE RIGHT ADR PROCESS
The various ADR processes have their good and bad points, and some are better suited to certain situations than others. Here, in a nutshell, are the most common:
• MEDIATION. A private, voluntary process in which an impartial person facilitates communication between the parties to promote a mutually agreeable settlement.
• JUDICIAL SETTLEMENT CONFERENCE. A neutral individual, usually a retired judge, listens to an abbreviated presentation of the case and renders an advisory opinion on factual or legal issues, as well as damages.
• MED/ARB. Parties agree to mediate with a stipulation that any issues not settled will be resolved by binding arbitration.
• ARBITRATION. An adversarial process in which the disputants select a neutral third person to listen to evidence and render an award. Can be either binding or non-binding, and may involve “high-low” limits.
UNDERSTAND THE RULES AND GUIDELINES OF THE MEDIATION PROCESS
At this stage you want to make sure that everyone understands the rules of engagement. By taking the lead in doing this, you will avoid problems later.
• CONFIRM AGREEMENT TO THE HEARING AND COSTS INVOLVED. The written Agreement to Mediate sets forth the procedures for the hearing and who is responsible for the costs. The agreement can be designed to fit your needs. However, since mediation is non-binding and can be terminated at any time, the agreement is normally flexible so that the parties can control their own destiny. The main components of the agreement include confidentiality, cost and selection of the mediator.
• CONFIDENTIALITY. Make sure the written agreement is executed by all parties confirming the confidentiality of all information learned during the process, and that the information cannot be used later against someone in court. (The rules of evidence in some states may not provide adequate protection). During the hearing, the mediator will get your permission before disclosing information you revealed in a private session to the other side.
• FORMALITIES AND INFORMALITIES. Usually a hearing is informal, although each mediator has his or her own style. Ask the mediator about his/her style or approach in advance of the hearing or at the beginning of the session. Mediators vary in their insistence on following formal evidence rules. Determine what or whether the mediator has any preference in how you should present your side of the case. Be sure that everyone with authority to settle is present.
CREATE A CASE ROAD MAP
As with a full-blown court case, you need to plan your preparation. Do not let the informality of the procedure lull you into something less.
• IDENTIFY THE ISSUES IN DISPUTE. Make a written list of what you consider are the critical issues of the controversy. This will allow you to focus the negotiation on those issues, and assist in your objective evaluation of the case.
• DO A “CRITICAL INFORMATION ANALYSIS”. Make sure you have all the information you need regarding liability and damages before the hearing. If legal research is involved, bring copies of appropriate research to the hearing to share with the mediator.
• ANALYZE HOW YOU WOULD TRY THE CASE. Evaluate the strengths and weaknesses of the case from an objective perspective. What verdict would a jury likely return in the case, or what conclusions would a judge make. Consider what your realistic expectations are, based on criteria that can be supported by the evidence. This allows for a balanced approach to the case, rather than a subjective evaluation.
• PLAN YOUR PRESENTATION. Consider what information about your interests and the facts of the case you want to disclose to the mediator, and what information you want to disclose to the opposing side. Usually, full disclosure to the mediator helps facilitate a successful settlement.
• PREPARE A SIMPLE CASE SUMMARY. Also known as a “position” statement or brief, this is your opportunity to outline the facts of the case, issues in dispute, damages and other factors. Consider the value in providing a confidential statement to the mediator which includes your thoughts on what criteria you will use to determine when an agreement proposed is fair, how you think the other party realistically views their chances of success, and what you think the other party views as a fair outcome for both sides.
DEVELOP A NEGOTIATION STRATEGY
Although the mediator will meet with the other side to communicate offers and counteroffers, you should have a clear idea of how you want the negotiation process to proceed. You should also consider how to make your proposals palatable to the other side.
• IDENTIFY THE CURRENT NEGOTIATING POSITION OF THE PARTIES. Do a mental review of the negotiation activities conducted to date so you know where to begin, or where the opposing party might perceive where you will begin. This is a good opportunity to remind yourself of your common goals.
• DETERMINE “WANTS” AND “NEEDS”. Often referred to as “interests,” these are the silent movers that motivate people to change their “positions” in a negotiation. Your position is something you decided upon, while your interest is what caused you to decide.
• CONSIDER “WHAT’S AT STAKE”. Objectively evaluate your case through information obtained through litigation, or independent, verifiable criteria such as jury verdicts.
• CREATE FAVORABLE PERCEPTIONS. Negotiation is a series of communications in which the parties attempt to alter each other’s perceptions. To be successful, you must be able to manage the information received by the other side. Do this by listening actively, respecting the other side’s claim, posing arguments, making proposals and offering alternatives.
• DEVELOP OPTIONS FOR MUTUAL GAIN. Consider whether the settlement options available are preferable to proceeding to trial. This requires a cost analysis of settling at mediation versus going to trial, as well as close reflection on what options are available to the other side.
OBTAIN AUTHORITY TO SETTLE
Be prepared to come to the table ready to negotiate. That means having the financial ability to settle the dispute with adequate reserves in place. Meet in advance with whoever might need to be consulted about the prospect of an immediate settlement (attorney, wife, husband, business associate, or other necessary person).
DETERMINE WHICH PEOPLE WILL ATTEND THE HEARING AND WHAT ROLE EACH WILL PLAY
• INSURANCE REPRESENTATIVES
Basic preparation steps include the following:
• Consider what you are going to disclose both in pre-mediation and during the mediation.
• Use the mediator. In private, preliminary telephone conversations before the hearing, talk with the mediator about your presentation and approach to the case, what information you and the other side need to know in order to evaluate settlement options.
• Anticipate what story you will tell during the opening session of the mediation and rehearse it; and
• Organize Documents. Have copies of documents, photos or other writings available before the hearing begins.
Three simple rules for your opening statement:
• BE SIMPLE, CONCISE AND CLEAR Tell a short story in plain words.
• DON’T WAIVE YOUR RIGHT TO AN OPENING STATEMENT
• TALK ABOUT YOUR SIDE, NOT THEIRS
MAKE IT EASY TO REACH AGREEMENT
Throughout the process, and even before it begins, you should think about what it takes to make it easy to reach agreement. Steps include:
• Cultivating a sense of mental detachment. Take yourself out of the negotiations playing field and insert the dispute in your place. This allows you to talk about the issues in dispute, rather than getting bogged down in personality games.
• Meeting the other side’s needs. You can better understand your opponent’s needs by listening actively, acknowledging and paraphrasing their arguments. Express your views without provocation. This is an effective tool to “disarm” your opponent while understanding their point of view.
• Problem Solving. This is the time to recast what your opponent says in a form that directs attention back to the problem of satisfying both side’s interests. Ask “what” and “how” questions to move toward a solution. Sometimes asking “why” will cause your opponent to be defensive.
• Considering the consequences. Ask reality testing questions such that your opposition will understand what will happen if agreement is not reached.
• Bridging the gap. Reach agreement by helping your opponent save face. Try to satisfy unmet needs and involve your opponent in the process. Don’t rush into the agreement, it will fall into place naturally.
After all of the hard work that you have done to reach agreement, take a few final steps to make sure that there are no disappointments:
• Put the agreement in writing. Don’t wait — do it immediately upon reaching agreement.
• Make sure the parties can perform the agreement; and
• Congratulate each other. You deserve it.