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Attorneys as Advocates in Mediation

By The Hon. Robert L. Harris, Sr. (Richmond Circuit Court, retired)
The Journal of the Virginia Trial Lawyers Association, Spring 1998

Over the past few years, mediation as a means of resolving disputes has grown exponentially in Virginia. Since my retirement as a circuit court judge in June 1995, I have personally mediated more than 400 cases across the Commonwealth, with 90 percent of those cases settled. I predict that within the next five to ten years, mediation will become a standard part of the practitioner’s professional life. Without question, this audience will mediate more cases than they will try going forward.

Cases amenable to mediation

The first question that often arises in this context is what type of case should be considered for mediation. I agree with Chief Justice Carrico that “[g]enerally… almost any civil dispute is amenable to mediation.” (The Virginian Pilot, March 27, 1995.) About the only case that is not appropriate for mediation is one in which the parties need a judicial decision as a precedent for future planning or course of conduct.

Mediation can be used in nearly every type of civil dispute, including personal injury resulting from automobile and other accidents; product liability; premises liability; medical malpractice; dissolution of partnerships and corporations; business disputes related to buying and selling businesses; domestic relations; civil rights issues arising out of sex, race and age discrimination; employment disputes; and trust and estate disputes.

[Editor’s Note: Many practitioners recommend careful case evaluation before considering mediation. See sidebar story.]

Determining when to mediate

It is appropriate to mediate a case as soon as the parties are able to evaluate the merits of the case realistically, to assess settlement options, and to engage in a reasonably accurate cost/benefit analysis of litigation and trial. Surprisingly, the bar in Virginia is demonstrating that the appropriate time for mediation is earlier in the life cycle of a dispute than many might assume. In fact, some disputes are being mediated even before a case is filed.

It is becoming apparent to many lawyers that often the best chance to get a case settled is when it is mediated early. In addition to efficiencies in both time and money, early mediation brings people to the table while the parties are flexible and willing to hear and consider strengths and weaknesses in their cases, rather than after positions have solidified and large litigation costs have been incurred.

All parties should enter mediation with open minds and willingness to modify their positions. Mediation should not be attempted unless both parties have room for further negotiations. In fact, opposing counsel will expect you and your client to be willing to listen and modify positions when presented with a legitimate basis for doing so. Of course, you can justifiably expect the other side to have room to negotiate, either increase an offer or reduce a demand, if the facts support such action. It is almost impossible to mediate a case if you have demanded your absolute bottom or offered your top dollar.

Never too late

As long as the parties are willing to modify their positions, it is never too late to mediate. In fact, cases have been mediated between trial and a pending appeal, as well as after reversal on appeal and remand for a new trial.

Getting to the mediation table

Once you and your client have decided the case is appropriate for mediation, you should approach the other side and suggest mediation. Some attorneys have voiced concern that recommending mediation to opposing counsel will be perceived as signaling a lack of confidence in the case. On the contrary, it is my experience that mediation has gained recognition as a valuable tool by defense counsel, plaintiff s counsel, and insurance carriers, who respond positively to such overtures. Far from being perceived as a sign of a weak case, an offer to mediate is more often seen as an indication that the attorney and client who suggest mediation are confident that by presenting their views of the case, they will reach a satisfactory resolution.

Mediator styles

Once all parties are on board for mediation, the next step is to select a mediator who best suits your type of case. While mediators’ approaches vary, the two primary styles used are facilitative and evaluative. Fundamental to every mediation is the facilitative style that creates the proper environment, manages the process, and keeps the parties talking until they reach a mutually advantageous settlement.

The evaluative mediator also functions as a facilitator. However, if the parties reach an impasse and request a neutral evaluation, the mediator will provide it as a last resort. Experience shows that it is preferable for the parties to achieve resolution without the mediator’s evaluation because they are then happier with the result. If the process moves to the evaluative phase, in order to maintain neutrality, it is imperative that the mediator provide his evaluation to all involved parties. It is also imperative that the mediator provide a range of probable results rather than predict one specific outcome.

The most important personal traits to look for in a mediator are neutrality, patience and perseverance. In addition, the mediator should have specific training and substantial experience.

Pre-mediation conference call

After a mediator is selected and the time and location of the mediation are set, the attorneys and the mediator should hold a pre-mediation conference call to reach agreement on ground rules. These include appropriate style of mediation, individuals who will be present, materials needed by the mediator prior to the meeting, and amount and allocation of mediation fees. One of the key points to cover in this discussion is that it is essential for each side to have a designated representative at the mediation who is authorized to settle the case and who commits to remain until all settlement possibilities are explored. Without this authority’s presence, the likelihood of success is drastically reduced.

Preparing for mediation

Based on my personal experience, an attorney’s time and efforts are well-spent in thoroughly preparing his client and his presentation for mediation. While mediation is conducted in a less structured and formal setting than a courtroom, the more casual nature of the process does not diminish the importance of advocacy.

The decision-maker on the other side will be evaluating the merits of your case, your client as a witness, and you as an advocate. This is your opportunity to persuade the decision-maker of the merits of your case and the risk of litigation if settlement is not achieved, and to do so by facing the decision-maker on the other side directly across the table. I have witnessed settlement values change significantly as clients and attorneys hear credible, well-prepared presentations.

In preparing for your presentation, consider that demonstrative evidence may assist you in explaining your perspective. Indeed, photographs or other details which might not be admissible in court may be very persuasive in this setting. Excerpts from depositions that present the highlights of your evidence can also be persuasive.

Joint session

When the mediation commences, present your opening statement in a logical, persuasive manner. Just as in a courtroom opening statement, you are presenting the facts of the case to be supported by the evidence. As stated above, it is best to direct your remarks to the decision-maker/client on the other side as well as to opposing counsel. You are more likely to elicit empathy on behalf of your client if you appear rational and reasonable. It is not advantageous to be offensive or unnecessarily aggressive. Remember, your opposition is your jury.

I would advise you to present all your facts and law, and argue to convince the decision-maker that it is in his/her best interest to settle today. Cases are settled out of fear that failure to settle may result in a verdict that is less favorable than can be achieved through settlement. Therefore, it is rarely, if ever, to your advantage to conceal facts or legal arguments that might persuade the other side of the strength of your case. Let your opposition know what it’s up against; play your cards. After your opening presentation, your client will be given the opportunity to speak directly to the decision-maker, also. It is your responsibility to prepare the client to make persuasive remarks while maintaining a pleasant demeanor.

As the opposing attorney presents his client’s case, you and your client should show respect for his advocacy role, listen respectfully, and refrain from interrupting or reacting to his comments. When you are representing a corporate client or an insurance company, efforts should be made to personalize their interests.

Caucus

After the collaborative or joint session is concluded, most mediators hold separate caucuses with the parties. In these sessions the mediator can discuss privately with one side – and then the other – the issues, the strengths, the weaknesses, the personalities, and any other relevant matters affecting a settlement. Confidences revealed during these separate caucuses are protected by the mediator and will not be revealed to the opposing side without permission. After each caucus, typically plaintiffs’ demands are lowered and defendants’ offers are increased until both parties agree on terms of settlement.

Mediators commonly conduct several caucuses and communicate several demands and offers before parties reach settlement or impasse. Because parties are more satisfied with agreements that have been reached incrementally, it is best not to hurry the process.

In the event that parties reach an impasse, and if the attorneys request that the mediator move from a facilitative to an evaluative role, the mediator may set forth a range of probable outcomes. Parties are not bound by these parameters, of course, since the decision to settle is always exclusively theirs, but an assessment of possible outcomes can be helpful information if presented in a responsible way at the end of the mediation.

Settlement

Once parties have orally agreed to a settlement, the terms should be committed to writing and signed by the attorneys and the parties. When informal, hand-written memoranda are drafted and initialed, they can be replaced later with more detailed, formal agreements. The important point is that at the close of the mediation there must be clarity among all the participants as to the status of their relationship: oral agreement; written agreement; non-binding memorandum of understanding to be made into a legally enforceable contract later; or, “no deal.”

Client benefits

Most clients prefer to avoid the stress and expense of going to court. In my experience, they invariably desire expedited resolution of their problems. As an advisor and counselor, you have the ethical responsibility to inform them of viable options available in our legal system for achieving that result. Experience has demonstrated that the mediation option offers many benefits over litigation. They include: cost savings; reduced stress; reduced risk of undesired result; expeditious resolution; confidentiality of the process that leaves client dignity intact; full client participation with the opportunity to vent or tell his story; and maintenance of control over outcome (can opt out at any point). It is very important to note that, by personally participating in the collaborative mediation process, the client is permitted to tell his story, thus he feels he has had his “day in court.”

Client appreciation

As a client relation tool, mediation is highly advantageous to attorneys. More than 95 percent of, all cases filed are settled before verdict. Cases that do not reach the stage of filing a claim, obviously, are settled in some manner. In a traditional practice setting, much professional effort, time, skill and expertise are expended on these cases out of the client’s presence. Thus, the client is not as likely to appreciate fully your professional assistance and the justification for your legal fees. Additionally, although your client must agree to settlement terms, he or she will not have benefited fully by participating in the decision making process.

In a mediated case, your client participates with you. This enhances his or her understanding of, and appreciation for, your efforts on his or her behalf. I have observed that the mediation process usually produces the added benefit of enhancing the relationship between attorney and client.

Conclusion

The key to successful representation of clients in mediation is to remember that the process depends on a certain level of collaboration between the parties in order to achieve a workable settlement. Thus, the adversarial nature of many attorneys’ representation of their clients in litigation needs to be tempered by the recognition that parties often respond better to an advocate’s approach that signals a strong case, but is not offensive or intimidating in any way. Cases settle because the level of risk involved in going to court (risk in terms of money, time, or the potential for an unsatisfactory verdict) is unacceptable. If parties believe that they are being bullied or overwhelmed during the mediation process, they may lose sight of the risks of going to trial and stake out a position that will make settlement impossible.

Be an advocate. Know your clients’ real interests. Be prepared to present your perspectives in a

way that makes them sound reasonable and palatable to the other side – your jury. Mediation is a powerful tool to add to your toolbox; use it wisely and your clients will be well-served.

When to Mediate: Practitioners’ Perspectives

As in all cases, one size does not fit all, i.e., mediation is not beneficial for all clients, says family law practitioner Ronald R. Tweel of Michie, Hamlett, Lowry, Rasmussen & Tweel in Charlottesville.

Some lawyers start with a presumption that mediation is best unless certain defined characteristics or personal traits exist in your client or in the dynamics of the parties. Other lawyers take a more cautious view and feel that mediation is proper only when lawyer-to-lawyer negotiations fail. Perhaps a combination of these two approaches can best serve your clients.

Always be mindful of the risks and down sides, cautions Roger Creager, personal injury attorney with Marks & Harrison in Richmond. Know your case well before mediation and conduct your discovery to be sure you know the value of your case prior to mediation.

Combined, these practitioners recommend the following situations may make your case inappropriate for mediation:

  • Avoidance of full disclosure. A client who believes he or she can manipulate the system so that full financial disclosure can be avoided should not be sent to mediation, or if you suspect that either your client or the other side wants to conceal information. Mediation can be an opportunity for your opposition to get some insight into your trial strategy, so be sure about the disclosure issue.
  • Defenseless client. Particularly in domestic cases, clients may be unable to articulate their own needs and protect their interests. This is a particularly common dynamic in marriages when one spouse has always made all decisions, or has controlled the spouse for the years of the marriage.
  • Weakened client. Mediation can affect the momentum of a case and may burn time. It could be difficult for your client to re-live the accident for mediation and then possibly again for a trial.
  • When case is not complete. Unless you and your client are willing to take the risk of not knowing all the potential in your case, mediation early may not be wise.
  • Psychological or mental problems. There are numerous mental illnesses which obviously indicate mediation may not be wise, but consider depression in your client as well.
  • Spousal abuse. Generally, this type of abuse makes mediation inappropriate.
  • Client reticence to mediate. After having thoroughly explained the mediation process, listen to your client. If they have strong reservations and not merely a fear of the unknown, listen to their request.

Some cases are more difficult than others to mediate, but this does not mean a good faith effort should not be made, says Tweel. These cases include ones with high levels of conflict or extreme emotional turmoil.

Ultimately, these practitioners urge lawyers to select the right mediator. Look at the kinds of mediations done by a particular mediator. Check their experience and look into their background.

Reprinted with permission of the Virginia Trial Lawyers Association.

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