Winning Mediations: Successful Preparation for Successful Presentation
June 20, 2007
By: Darren Aitken
For the litigator, mediation skills are vital. It is no overstatement to proclaim that Alternative Dispute Resolution (“ADR”) in general, and extra-judicial mediation in particular, are now a way of life. It is almost inevitable that at some point during litigation one side or the other will request that the matter be mediated, or the court will order that mediation take place before a matter is heard for trial. For example, the recently revised Judicial Counsel form pertaining to evaluation conferences contains a separate section outlining different types of ADR, including mediation, and asks the attorneys to select the form of ADR in which they would be willing to participate. Many contracts specify some form of ADR as a prerequisite before suit can be filed, or designate a form of ADR as the sole means of resolving disputes between the parties. Since most cases will be mediated at some point, litigators must work to sharpen their “mediation skills” as a necessary component of their professional development.
The Value of Preparation
The first fundamental rule in approaching mediation is to commit the time and effort to make the process successful. “Garbage in-garbage out” is a tired, worn-out phrase that, nevertheless, accurately describes most fields of human endeavor, including mediation. The second tired, worn-out phrase that is equally true and applicable is “a picture is worth a thousand words.” It is unrealistic to believe that, by merely showing up at a mediation, supported by a short mediation brief or nothing at all, you will be able to achieve the best possible result for the firm’s client. Certainly one would not try a case by solely presenting verbal statements before the jury; why would one want to approach a mediation in this fashion? Once a case enters litigation, each side develops opinions and expectations regarding the key facts or issues in dispute. Since the matter has not settled prior to mediation, it is a safe assumption to state that the litigants are in disagreement regarding the nature or meaning of those key facts and issues. Therefore, for mediation to be successful, the attorney must get the opposing side to move toward his or her client’s position–and this involves persuasion.
The second fundamental rule is to organize the mediation presentation around the key points the firm wants to make on behalf of its clients. The materials presented should be organized around your case’s “theme,” and the written materials and demonstrative exhibits that illustrate the main points should be created accordingly. In a sense, it is a preview of the case’s final argument, and should be as well thought out and meticulously prepared. Just as in final argument, visual aides are invaluable when attempting to communicate and to convince the target audience. If nothing else, a polished mediation presentation demonstrates to the other side that you know the case and are prepared to argue it in trial. Therefore, even if the substance of the firm’s message is ignored or rejected, the fact that the firm is ready, willing and able to articulate its client’s position will be noted. That demonstrated ability might create doubt or an appreciation of risk that the opposing decision-makers did not have previously. Sometimes, that fact alone can make the difference between a successful resolution and continued litigation.
Knowing and Considering Your Audience
When preparing a matter for mediation, the litigator needs to keep in mind several audiences: (1) the mediator; (2) opposing counsel; (3) the opposing client; and (4) the firm’s client. Consider the reaction you would like to create in each of these different audiences, and organize and present your materials to achieve your ends.
In regard to the mediator, the first step is to know the mediator’s “local rules.” In other words, what does the mediator want by way of a pre-mediation submission, and when does she want that material. While it is not absolutely necessary to convince the mediator that you have the stronger arguments, it certainly cannot hurt. Therefore, the requested information delivered in a timely fashion helps to create the impression that your side of the litigation is well-organized and presents strong arguments on its behalf.
While it may seem counter-intuitive, opposing counsel are perhaps the least important audience to consider. First, opposing counsel are rarely the ultimate decision-makers on the other side. In fact, it is often hard to determine how much influence opposing counsel has on the ultimate decision-makers. Second, through their exposure to the case and its development, opposing counsel have likely come to strong conclusions about what the evidence shows or what the applicable law holds. Therefore, your chance to significantly sway opposing counsel through the mediation presentation is limited. Finally, before the mediation begins, opposing counsel have likely briefed their client as to their view of the matter. Therefore, even if you are able to change opposing counsel’s mind-set about the case, they may be reluctant to admit it for fear of being perceived as weak, indecisive and/or surprised in front of their client.
Just as opposing counsel is perhaps the least important of the various audiences to consider, the opposing client representatives are perhaps the most important. The true value of the mediation process is that it presents the one opportunity to speak directly to the other side’s decision-makers without the intervening “spin” of opposing counsel. The importance of being well-prepared and “impressive” to the opposing client can not be overstated. You must seize this opportunity to persuade the opposing party’s decision-maker of the merits of your position, or at least make that decision-maker recognize that there is a significant risk that you might prevail at trial. By creating (or reinforcing) doubt in the mind of the other side’s decision-maker, you can create the circumstances necessary to spur movement in your client’s favor, thereby increasing the chances of a winning mediation.
Finally, it is always important to brief your own client about what to expect at a mediation, and the approach you intend to take. The mediation itself is certainly not the place and time to begin your client’s education on the realities of litigation. Success at mediation often requires a series of decisions, and you certainly never want to lose a favorable resolution because your client was ill-prepared or surprised at the mediation and, therefore, unable to make the decision to follow your advice in a timely manner.
In my opinion, when considering the type of materials to be presented at mediation, throw out the rules of evidence. Look for information and exhibits that will get your intended point across without regard to whether that information can be presented to a jury at trial. Mediation is not a trial and, therefore, there is no reason to limit your presentation to “admissible” evidence unless there is an agreement ahead of time to do so. If you believe that some information will help you persuade the audience at a mediation, present it even if the jury will likely not see it. For example, assume an injury case with aggravated negligence where liability will be stipulated at trial. If you believe that dramatic accident scene photos will have a positive emotional impact on the other side’s decision-makers, use them, even though these photos may arguably not be presented to the jury. Likewise, in a matter involving a wrongful death, evidence of post-death “grief and sorrow” is normally not admissible before the jury. If you believe such evidence will make an impact on the other side, however, present it. This point applies equally to the content of your mediation brief (assuming it is shared with the other side) and to what is shown or emphasized during your oral presentation.
Secondly, I think it is important to make your goals clear to the other side well before the mediation commences. Your chances of success are increased at mediation if the opposing side is aware of your positions and expectations before they arrive that day. Your ability to resolve a case at mediation is compromised if your presentation catches the opposition by surprise and they are not allowed to digest your position and act upon it. For example, an opponent surprised by your position may not bring the appropriate decision-maker, or she may demand further time to research an issue that has been raised (or forcefully articulated) for the first time at mediation. It is worth noting that people who are caught off guard generally react by maintaining the status quo. Since the purpose of the mediation is to motivate your opponent to do something – whether by paying a certain sum or by taking a certain course of action – surprising an opponent with “new” information rarely helps you to resolve the case at that time.
Therefore, to begin the education and persuasion process, I ordinarily will send a mediation brief containing some, but not all, of my intended exhibits well in advance of the mediation date to educate the other side about my thoughts on valuation and the reasons therefor. To extent you can “narrow the gap” between the parties’ positions prior to the mediation, you should do so. Educating the opposition prior to the mediation is obviously no guarantee of success, but I believe it does lessen the chances of participating in a mediation that has no chance to succeed from the outset.
It bears repeating that you should create your exhibits and organize them based on the theme you wish to present. To do so effectively, one must understand the strengths and weaknesses of the case, and then focus on how to emphasize those strengths while minimizing the appearance of any weakness. As a general rule, a plaintiff should emphasize damages because it is the final monetary result that determines whether the mediation is a success. In my cases, I typically highlight liability only where it promotes the case for damages, such as where there is egregious behavior by the defendant or the facts of the incident are dramatic.
Unlike trials, mediations typically are attended by those who are experienced with the litigation process. Therefore, it pays to prepare creative exhibits if one wants to capture and hold the other side’s attention. An added benefit of thinking creatively is that it forces you to look at the matter with “fresh eyes” and, thereby, possibly discover nuances and angles that help focus the case for future presentation.
Do not forget the different techniques and technologies one can use to present evidence. I have found that by using a variety of media in any one presentation, one can keep the opposition attentive and focused on your position. For example, you can vary your presentation using blow-up presentation boards, hand-outs, overhead projections, video clips and computer “power point” presentations in a single discussion. Demonstrating your ability to communicate your position in an effective way is often as important in achieving a favorable result as any of the “facts” of the matter.
Mediations often present the best opportunity a litigator has to break through the legal and factual “haze” created by litigation and to speak directly to the other side’s decision-makers. It is crucial that you take advantage of that opportunity by presenting a well-conceived, purposeful argument on your client’s behalf that makes liberal use of visual and other media to reinforce key points. Creating the impression with the other side that you can win the matter at trial is probably the most effective way a litigator has to achieve a favorable result at mediation. Therefore, the time devoted to crafting and presenting an impressive mediation presentation is always well spent.
Darren Aitken is a partner at Aitken * Aitken * Cohn in Santa Ana, and specializes in major injury, wrongful death and commercial tort litigation. He can be reached at Darren@aitkenlaw.com or at 714 434-1424.