|Oregon State Bar Bulletin NOVEMBER 2009|
The first time I went shopping at the local market as a Peace Corps volunteer in the West African country of Mauritania, I was surprised to find that price tags were nowhere to be found. A customer interested in buying anything from milk to a cell phone would make a low opening offer expecting rejection and a counter-offer. I soon found that the best way to avoid paying “tourist prices” was knowing where to set the opening offer, and then knowing how to aggressively point out a product’s flaws without insulting the merchant.
As an American in Africa with no experience in bargaining, I had no way to measure the objective value of the product I wished to purchase. I lacked the social connections to easily determine “going rates” for everyday items. For example, I would offer two dollars for a loaf of bread for which no Mauritanian would pay more than 10 cents. The market vendors were more than happy to pocket the difference.
Likewise, as a new bar admittee I was baffled by my first mediation. I had received almost no mediation training at the University of Virginia’s School of Law, yet as an insurance defense lawyer I found that I was spending considerably more time in front of a mediator than in front of a judge. Prior to taking the bar exam I had participated in many mock trials, as well as a few real ones, but I had never even seen a mediation until a partner instructed me to “tag along.”
I peppered the partner with questions: How should I prepare the client? What should I include, and omit, in the mediation memorandum? How would the case be presented to the mediator in person? Where should the opening offer be set, and what to do when it is rejected?
Law school had failed to provide me with the tools to answer these questions. I soon found that relatively few resources are devoted to familiarizing new attorneys with the basics of the mediation process, and that more experienced opposing counsel are more than happy to take advantage of this fact.
Since joining United States Arbitration & Mediation of Oregon, I have had the opportunity to see the dynamics of the mediation process play out on a daily basis. I see advocates struggle with the interaction of offer and counter-offer. I see them forget that they are not in front of a jury and waste hours attempting to educate a mediator in the area of the mediator’s expertise. I see clients dressed as if they were spending a day at the beach.
Fortunately, one of the perks of the job is that I have access to USA&M of Oregon’s panel, an impressive collection of seasoned attorneys and retired judges. I took the opportunity to mine this field of heavyweights for mediation practice tips that would benefit attorneys of every level of experience. Here is what they had to say:
First, do your homework. Research jury verdicts in similar cases, preferably cases with the same trial counsel and the same county. A good place to start for Multnomah County jury verdicts is http://www.mbabar.org/courts.htm.
Make sure your client understands the process and knows what to expect before the mediation. Many clients are confused about the difference between mediation and arbitration and believe that the mediator will make a decision on the case. Also, make them aware ahead of time that initial offers and demands may be unrealistically low or high, that this is merely part of the process, and they should not be offended by it.
Take a tip from pre-debate politicos. Manage your client’s expectations by talking up the strength of the opposing party’s case. This will increase the probability of settlement (and will burnish your client’s impression of your own performance).
Let your client know that it is often helpful for the mediator to speak with counsel outside the presence of the client. This can be helpful if the client has unrealistic expectations or is unwilling to recognize the risks of the case. Attorneys can often be more candid with the mediator about this outside the presence of their client. Do not be afraid to speak to the mediator alone to develop a strategy on how to handle this.
Keep mediation briefs short, ideally five pages or fewer. Include an accurate negotiation history of prior offers in the brief. Inaccurate depiction of prior offers casts a negative impression when the truth is revealed at mediation.
Bring a laptop and thumb drive to use to draft and print the settlement agreement.
When you get to the mediation, remember that it’s not a trial, it’s “Let’s Make a Deal.” The mediator is neither the judge nor the jury. Do not bother to educate him or her on the physics of whiplash.
Some mediators believe that it is helpful for everyone to meet briefly together so the mediator can explain the process to the parties. The attorneys need to provide the mediator with a heads-up if there are emotional issues that preclude a joint meeting with the parties and their attorneys. For settlement purposes, try to put yourself in the position of the opposing party to understand the reasoning of the other side of the case.
Plan for the fact that at least half of your time spent in mediation will be alone with your client, without the mediator in the room. Some mediators will try to keep you involved in the process by giving you “homework” in the form of an inter-caucus worksheet. These typically include questions such as “What would the most objectively fair resolution of this conflict look like?”
Minimize your focus on legal issues and concentrate on how a jury would respond to the case. Focus on how the parties and witnesses will perform on the stand.
Designate one member of your team as the spokesperson. This person should do most of the talking when the mediator is in the room. The process works better if it is clear who is in charge on each side.
When the mediator asks for an opening offer, make an offer that will prevent the other party from walking out, but one which also gives you as much room to move as possible. A good mediator will be able to give you guidance on a good starting number.
Do not tell the mediator your bottom line before he or she asks for it. Good mediators need to be able to honestly tell both parties that they do not know the other party’s bottom line in order to feel out the settlement options for the case.
Consider using “bracketing” offers to move the process along. For example, “we will come down to $150,000 if the other side comes up to $70,000.” These usually work best after at least two to three exchanges of offers. Using this technique can help bridge a gap when things seem to be moving slowly.
Understand that both you and the opposing party will each want to walk out of the room over the course of the mediation. Anticipating and acknowledging these impulses will allow you to walk back into the room with composure.
If all else fails, consider a confidential settlement offer. Each party submits a figure to the mediator that is close to their bottom line, but still allows for a little room to move. If the offers happen to be equal, the mediator reveals the offers and the case is settled. If there is still a gap, the offers remain undisclosed and the mediator can move forward with a better idea of the potential settlement range.
Do not leave the mediation until you are sure the process is at an end and the parties are at an impasse. It is easy to become frustrated with the process, offended by the offers and “walk out.” Stay with the process.
Even if the parties seem unable to settle, don’t close the door entirely. Offer to resume the mediation after a break of a couple of hours or to consider a written settlement proposal from the other side the day after the last mediation session.
In the end, nothing can replace experience for learning the strategies and customs of negotiation and mediation. While each mediation is unique, practitioners of every level of experience should find that following these
ABOUT THE AUTHOR
The author is managing attorney of USA&M/Oregon and can be contacted at firstname.lastname@example.org. USA&M/Oregon panel members Ed Brunet, John Cavanagh, Jane Clark, Michael Dotten and executive director Sue Porter contributed to this article.
© 2009 Evan P. Seifert