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Practical Pointers: Top 10 Pitfalls for Mediation Advocates

I have had the privilege of working with many outstanding attorneys while serving as a mediator in dozens of employment cases. Most appreciate the distinction between trial advocacy and mediation advocacy. At the same time, occasionally I witness tactics that create obstacles or result in lost opportunities. Here is a “Top 10” list of pitfalls for mediation advocates to avoid:

1. “Winging It.” Mediation advocates should be careful not to fall into the trap of coming to the session unprepared. Perhaps because the process is non-binding and private, or because it involves a fair amount of “down time” while the mediator meets separately with the other side, there may be a temptation to just “wing it” and figure out your strategy on the fly. That is a mistake. Making the most of the mediation includes having a command of the facts and the law, as well as a plan for approaching the session. Also, if there are significant obstacles to resolution, or unique dynamics that need to be appreciated, consider informing the mediator before the session. Another often-overlooked but vital component of mediation preparation involves advance work with your own client. Make sure your client understands the nature of the proceeding, prepare the client to do some critical evaluation of the case, and develop a preliminary game plan for the negotiation. Explain to the client that your role is different in a mediation than it is in the courtroom. While mediations call for advocacy, they also require the attorney to put on a “counselor” hat, engaging in reality-checking with the client about the risks and possible unfavorable outcomes of litigation. This is perhaps the most challenging aspect of mediations for trial lawyers.

2. “Missing the Boat.” Some advocates are reluctant to address the opposing party in a joint session, often for fear of “poisoning the well.” In my view, this is often a missed opportunity. Make an opening statement. Parties usually settle cases because they conclude that the proposed deal is better than the likely (or possible) alternatives. What better way to help the other side reach that conclusion than to preview what those alternatives look like? Ask yourself whether you are convinced that opposing counsel has sufficiently advised his or her client about the weaknesses in their case, and if not (which I suspect is your answer), then this is your chance to do so. At the same time, be careful in how you approach your remarks. Statements that are insensitive to the setting can be counter-productive. (See #3 below!) Do not bother trying to persuade the other party that your side is correct. You should not expect to change the other party’s mind about what happened or how they feel about it. Remember, in this setting, it’s not about right and wrong – it’s about risks. So talk about what happens if the case is not resolved at the mediation. Predict what the evidence will show and what the likely legal arguments will be. Explain why your side’s theories will have appeal to a judge or jury (or why the other side’s theories will not). Outline the likely outcomes. A persuasive presentation of the case can have a powerful effect in mediation…without being toxic.

3. “Trying the Case.” Treating mediation like a trial is a mistake. Making the opposing party cry, or whipping them into a fury, usually will not put them in a conciliatory mood. Avoid making personal attacks. Focus on the issues and the conduct – not the individuals themselves. Also, do not equate the mediator with a judge. Simply beating the drum of your party’s position, without taking into account the other party’s interests, will not provide the mediator the tools he needs to facilitate a resolution.

4. “You Go First.” It is instinctive to want the other party to make the first move. That desire is perfectly understandable. By waiting for your counterpart to make the first proposal, the conventional wisdom goes, you potentially gain valuable information about the other side’s position and avoid appearing too eager to settle. While intuitive, that approach may not harness the potential power of the initial proposal. A variety of independent studies, backed by empirical data, have shown that the party making the first move often achieves a better outcome. By “anchoring” the negotiation, the first proposal (so long as it is not patently absurd) sets a marker that can have a strong pull on the course of the exchange that follows. I am not suggesting that you should make the initial proposal in all negotiations. However, keep an open mind, challenge your instincts, and be willing to consider making the first move.

5. “Pulling Numbers from Thin Air.” Ensure that your client’s demand or offer can be justified. And be prepared to explain how you arrived at it. A proposal that is tied to something logical (such as, for example, the company’s typical severance pay for a job elimination) can carry more weight. And make sure the proposal is realistic. An employee who makes an exorbitant demand inevitably ends up crowing later that “I’ve cut my initial offer in half, but the company has only increased its offer by a fraction.” Sure, but fifty percent of ridiculous is still absurd. The same could be said for the employer who trumpets its generosityfor doubling its opening offer … of $50. Two times minuscule is still paltry.

6. “I’ll Need to Talk to My Manager.” There is nothing more frustrating thanmaking progress at a mediation, only to run aground because approval or direction is needed from someone not in attendance. Having that critical person available by telephone is a far inferior alternative to having him or her present in the flesh. It is difficult for an absent authority to experience the dynamics of the session or understand everything that has been shared. If that person’s input is critical to resolving the case, find a way to get him or her there. The mediator will be much better equipped to facilitate a resolution if he or she can communicate directly with that person.

7. “Head In The Sand.” Refusing to acknowledge (at least privately, if not to the other side) the weaknesses in your client’s case is a recipe for impasse. Do not allow ego or the desire to “send a message” to trump objectivity. Also, be willing to alter your assessment based on new information or changed circumstances.

8. “Cutting to the Chase.” Advocates often grow impatient with the mediation process, especially during the critical case evaluation stage that needs to occur before or during the exchange of proposals. For the negotiations to be meaningful, however, that groundwork usually must be laid. Occasionally, parties are tempted to jump to their “best and final” proposal early in the process to see if they are wasting time. Sometimes it works, but generally that temptation should be resisted. Be willing to engage in the “dance” of the negotiation. Trying to “cut to the chase” prematurely can be misleading to the other side. Studies have shown that parties in a negotiation are “hard wired” for a give-and-take, an exchange of demands and offers, and they get confused when the other party short-circuits that process by leaping to its “bottom line” or “top dollar.”

9. “Playing it Too Close to the Vest.” Parties in mediation often want to “hold back” information that they might wish to spring on the other side later, if the case does not settle. Saving favorable evidence for depositions or trial may be tempting, but it also may result in a missed opportunity. (With broad discovery, the chances of an ambush are not likely anyway.) The mediation may offer the best chance to truly capitalize on the value of that evidence, allowing you to secure important deal concessions from the other side. If you have a key document, email or other piece of evidence, bring it along to the mediation and consider disclosing it at the optimal time.

10. “Winning.” You do not “win” a mediation. Compromise is not a zero-sum game. Remind your client that in almost all cases, the other party will somehow need to justify the resolution in their own minds, or to a spouse, a manager, or someone else whose opinion they value. So in order for them to accept a proposed settlement, they must feel like they “got something” or at least “saved face.” Sometimes you can propose things that mean more to the other side than they cost to your client. These may be opportunities to create value. Finally, while negotiations tend to center around economic factors (e.g., the amount of money that a fired employee might get paid to dismiss her claim), try to remain sensitive to the intangible aspects of the case, like the parties’ emotional needs and interests in “due process.” I have seen employees settle for far less than they wished because they were able to have their voice heard. Likewise, I have seen employers pay far more than they planned because they concluded that fairness or other reasons justified the deal. Having the stakeholders craft a sensible compromise is often preferable to the expensive gamble of strangers deciding your case—in the elusive quest for “victory.”