Publisher’s note: This thought leadership article from Miles Mediation and Arbitration is publicly available (no subscription required).
Crowded court dockets mean the interest in, and need for, alternative dispute resolution (ADR) continues to grow throughout Texas. How can you set the stage for successful mediation? When is the right time to mediate a dispute? What should you do before you arrive for the mediation session? And why is having a settlement range important?
Read on for a closer look at some of the ongoing challenges and opportunities mediation can present to attorneys, and how you can better advocate for your clients at mediation.
Timing Matters
“One challenge for attorneys handling a complicated commercial dispute is to know how much discovery and motion practice is really needed before the dispute is ripe for mediation,” says Wiley George, who mediates cases in the energy, real estate, construction, health care, and insurance industries. “Our tendency as trial lawyers is to want more, more, more, and most of the time our clients are pushing for the same. But often enough is enough, and a case is ready to mediate.”
So how do you know when a case is prime for mediation? “Rely on your early instincts to assess what key documents are needed, what key depositions, if any, need to be taken, and what purely legal questions, if any, need to be answered,” says George. “And share those instincts with your clients early on.”
Consider Early Mediation
Felicia Hoss Harris, who mediates commercial cases in the energy, real estate, construction, and insurance industries, is a proponent of early mediation, which can save the parties time and money. “I really enjoy the challenge and rewards of early mediations (whether pre-suit, pre-arbitration, or pre-discovery,” says Harris. “It’s been rewarding to work with counsel and their clients over a period of days, weeks, and months to resolve disputes that would have taken years — and loads of money — to resolve had they not opted for an early and confidential mediated conversation.”
Harris has extensive firsthand experience with early dispute resolution (EDR). In fact, she drafted the report submitted in support of ABA Resolution 500, urging greater usage of EDR, and was a key participant on the team that drafted the resolution. Interest in EDR is growing not only in Texas but across the country as well.
Share Relevant Information
Most of the cases Ron Bankston mediates arise out of disputes involving serious injuries or fatalities, many of which are in the commercial transportation/trucking, oilfield/energy and product liability fields. “The size of jury verdicts in serious injury and wrongful death cases has increased exponentially in the last several years, so the stakes are considerably higher than ever before,” says Bankston. “Plaintiff and defense attorneys handling serious injury and death cases face a number of challenges in this environment. Two categories stand out: information sharing and expectation management.
“To maximize the chances of a successful mediation, both attorneys need to share with their opponent — on a timely basis — key information and documents needed for a realistic settlement evaluation,” he adds. “And both need to work to manage expectations — both client expectations and the opponent’s expectations.”
It’s critical for both sides to exchange information well in advance of the mediation to set the stage for a potential settlement. “The plaintiff attorney must provide complete information and documentation — expert reports, witness statements, photographs, medical records, medical bills, lien information, lost earning capacity information, expert reports and a settlement demand — well in advance of the mediation date,” says Bankston.
Counsel for plaintiffs should find out how far in advance the defense needs this information, keeping in mind that defense attorneys are typically expected to provide a pre-mediation report and evaluation at least 30 days prior to the mediation. “Therefore, the plaintiff attorney must provide the relevant information and documentation to the defense attorney no later than 45 to 60 days before the mediation date … to allow sufficient time for the defense lawyer to review and analyze the information and documents, and to factor them into her pre-mediation report and evaluation,” adds Bankston. And plaintiff attorneys should also request the information and documentation that supports the defendant’s position well in advance of the mediation.
Discuss Ranges Ahead of Time
It’s also smart to talk about potential settlement ranges with opposing counsel before the actual mediation. “While maintaining client confidences, this needs to be as candid a conversation as possible, allowing both sides to realistically assess the chances of reaching a settlement at mediation, and to set appropriate client expectations going into the mediation,” says Bankston. “If the respective settlement ranges are significantly different, the attorneys should each ask the other for an explanation as to how the opposing party arrived at its evaluation.
“Most attorneys handling serious injury and death cases know from their experience the kind of information that the other side will need to reach a realistic settlement evaluation. They also usually have a good idea of the range in which a given case is likely to settle,” says Bankston. “But there is no substitute for candid communication. In advance of mediation, and ideally before selecting a mediation date, the attorneys should (1) ask each other what information is needed and (2) give each other an idea of the settlement range that they each believe their client will be willing to consider.”
After receiving this information, lawyers should have “a frank conversation” with their clients about a realistic settlement evaluation so that clients aren’t surprised by this at the mediation, adds Bankston.
Speak with the Mediator Before the Mediation
In addition to communicating with opposing counsel well ahead of the mediation, it’s smart to speak with the mediator as well. “In particularly difficult or complex cases, I find that [as a mediator] having a separate call with counsel and their clients is very helpful,” explains Harris. “It helps to start building rapport, and for me to start thinking about how to help them approach and deal with the most contentious and challenging aspects of their conflict.”
Consider Your Perspective and Audience
It’s also important for attorneys to have the proper perspective when preparing for, and participating in, mediation. “Every mediation presents a unique set of challenges and opportunities. But to generalize, I’d say that a common challenge is approaching mediation with an adversarial mindset,” says Harris. “To be fair, I was often guilty of this as an advocate too.
“Just as my mindset as a mediator is not the same as it was an advocate, the mindset that is most effective for an advocate in mediation is not the same as the mindset that is most effective in front of a judge/arbitrator/jury,” says Harris. “The reason is simple – in both roles, lawyers seek to persuade, but with different audiences. In many cases, parties can achieve a ‘win’ through mediation that is better than a ‘win’ at the courthouse, when they effectively modify their approach to achieving that ‘win’.”
Attorneys should think about what is important to both parties, and the potential tradeoffs they may make through settlement or proceeding to trial. “There are trade-offs on either road. Prepare a litigation budget (with appropriate disclaimers) and try to approach the mediation with an understanding of each party’s likely BATNA [best alternative to a negotiated agreement], WATNA [worst alternative to a negotiated agreement], and the ZOPA [zone of possible agreement],” says Harris. “Consider using risk-adjusted values to come up with a high/medium/low goal for resolution and use that information to inform what may be a reasonable ZOPA.”
Finally, maintain an open mind at mediation, which offers solutions that you can’t find in a courtroom. “Be willing to acknowledge — confidentially and/or for mediation purposes only — that the chips might fall in a variety of ways if decisions about how the dispute ends are turned over to twelve strangers or a judge/arbitrator who does not have an interest in the outcome,” says Harris. “Keep in mind that the outcomes possible at the courthouse are extremely limited, when compared against the possible outcomes available through mediation. Stay curious and be creative.”
Authors’ Note: Ron Bankston, Wiley George, and Felicia Harris Hoss are all mediators and arbitrators with Miles Mediation & Arbitration in Houston.