Law360 (June 19, 2020, 6:03 PM EDT) --
Let's face it. No one (including the mediator) is keen on traveling to wear a mask and spend a socially distanced day together for in-person mediation.
Just accept that remote mediation may be your only current option to resolve a dispute. And that's OK.
Ignore the remote mediation naysayers. Remote mediation is a good option for alternative dispute resolution. The tech learning curve is shallow and Law360 has featured many helpful guides. Here, however, I assume some basic level of Zoom proficiency.
If that last sentence made no sense to you, you can put down this article. Otherwise, here are 11 practical tips to help you and your clients make your remote mediation successful.
1. Understand your client's expectations.
Take it from the great Mick Jagger! You can't always get what you want. But, if you try, sometimes you find you get what you need.
Before incurring significant expense litigating, please spend some time understanding your client's wants and needs. Your client wants to win the case. But, short of complete and total victory, there must be something that your client needs instead to move on.
Fast forward to remote mediation, a place for compromise. Few settle and get their full wish list. So, let's not waste time at remote mediation convincing a participant to abandon wants for needs because the lawyer and client are not already on the same page.
2. Consider the timing of mediation.
During a recent mediation, counsel for the defendant — an experienced trial attorney — told me that he does not lose sleep zealously advocating for his clients. But he does agonize getting to a jury because he miscalculated his client's litigation risk early on.
Imagine telling a client that winning a case will be no harder than sinking a two-foot putt. Then, one year and tens (hundreds?) of thousands of dollars later in defense costs, witnesses have gone sideways, the court has denied summary judgment, and your client's fate is in the hands of a jury. Ooof!
One way to mitigate the risk of those restless nights is to consider when to mediate.
The further left you can get, the less your client will spend in litigation expenses. Of course, the trade-off is that you may know less about your adversary's case. Conduct that cost-benefit analysis immediately and make a strategic decision about when to mediate.
3. Determine the type of mediator that you want.
If you have ever mediated in the U.S. Equal Employment Opportunity Commission's mediation program, you know the difference between a facilitative and evaluative mediator. EEOC mediation is facilitative. Whereas an evaluative mediator may recommend mediation positions and opine on which sides have the stronger claims and defenses, the parties in a facilitative mediation largely control the outcome. Facilitative mediation often features joint sessions where both sides communicate directly with one another to promote resolution.
Remote mediation may not lend itself as well to facilitative mediation, especially where the participants are less familiar with the technology. Also, having everyone in the same virtual conference room is different than having everyone share the same physical space. So, an evaluative neutral may be a better fit for remote mediation.
But, do not stop there.
Like that defense lawyer losing sleep over setting expectations for his client, find a remote mediator that loses sleep over a mediation that does not result in settlement. Look for someone who gives themselves one of two grades after mediation: A or F.
When a case gets settled — not matter how — that is an A. Anything less and the mediator has failed. Find a remote mediator who will not accept failure.
How do you find this unicorn? Do some research. Ask your colleagues. Talk to friends on the other side of the v. Pick up the phone and call the mediator.
4. Educate your client about remote mediation.
Do not take for granted that your client understands that remote mediation is an alternative to continuing — or starting — litigation.
Take some time to explain the mediation process to your client. Among other things, you must find out whether your client can take part using a platform like Zoom or GoToMeeting. Some clients may lack the literal bandwidth for online mediation, which is not a problem. Either counsel or the mediator can set up dedicated conference lines for the parties and the mediator can dial into each line during the mediation to caucus privately.
5. Schedule a premediation call with the neutral.
Most mediators will do this anyway, but the lawyers must have a call with the mediator before the remote mediation. Among the checklist of items that counsel should be prepared to discuss with the neutral:
- Mediation planning. Figure out what remote mediation platform the parties will use. Speak up if you or your client would like to practice using it beforehand.
- Identify the issues in dispute. Specifically, are there any known claims beyond those with which the parties are already familiar? For example, does the plaintiff intend to amend her Americans with Disabilities Act complaint to add an Fair Labor Standards Act claim? Does the defendant intend to assert a counterclaim?
- Informal discovery. If the dispute is prediscovery, discuss what information and documents, if any, the parties should exchange informally to facilitate settlement.
- Joint session. Decide whether the remote mediation will begin with a joint online session or whether the parties will continue directly to private caucuses in virtual breakout rooms.
- Flag key settlement terms. Mediators understand that money talks. But, are there any other essential settlement terms that you wouldn't otherwise expect to see in a standard settlement agreement for the type of matter? For example, an employer will torpedo mediation if it surprises the employee at mediation with immediate resignation or a 12-month noncompete as a condition of settlement.
- Mediation statements. The lawyers and mediator should decide when the parties will submit mediation statements to the mediator, how long they should be, and whether the parties will exchange them with one another.
- Demand and offer. Inform the mediator about any pending settlement demands or offers.
Speaking of which ...
6. Exchange a first settlement demand and offer.
At the very least, you have set up the goal posts for remote mediation, while removing some of the sticker shock from further negotiations at mediation. Alternatively, if the two sides are too far apart, you can save yourself the time and expense of mediation altogether. So, consider exchanging numbers before or shortly after deciding to mediate.
7. Make sure that the right people attend remote mediation.
Too often, a party unwittingly derails the progress that the mediator and parties have made at mediation when it must call a nonattendee for more settlement authority. This can happen at any mediation, whether in-person or remote.
But, the "call a friend" routine harms remote mediation more. Why?
Consider that remote mediation often lasts longer than one in-person. Because it takes more time to develop that sweet negotiating rhythm, the needle-scratching-the-record screech is so much louder when a party must stop to dial for dollars from someone who has not had the benefit of the lengthy remote mediation process. Therefore, attorneys should insist that all individuals with final settlement authority take part in the remote mediation.
Conversely, there are certain people who should not attend remote mediation unless the other side consents; for example, the alleged harasser, a family member, or other nonemployee of the defendant employer. Parenthetically, given the remote mediation dynamic, these people can remain off camera and no one will be the wiser. Just be mindful of matters requiring confidentiality.
8. Nail the mediation statement.
Many advertising campaigns over the years have featured the tagline, "You never get a second chance to make a first impression." So why do so many attorneys take premediation submissions for granted?
A good mediator will go on the docket, download some key documents, and review them to learn more about the case. For example, I take it upon myself to review the complaint, the Federal Rule of Civil Procedure 26(f) report, and any dispositive motions. Getting a mediation statement that is just a cut-and-paste of one or more of these documents adds no value.
The same goes for ad hominem attacks, legalese and passive voice.
Yes, mediators target the weaker party. A mediator generally spends more time with the party from which s/he can get larger concessions. Remember that when preparing your mediation statement.
In plain English, highlight for the mediator the key facts and legal issues. And while the mediator should be familiar with the law, if there is a specific case on point, cite, explain and attach it to your mediation statement. Also, close your mediation statement by reminding the mediator of the current demand and offer.
9. Begin mediation with an apology.
There are two undeniable mediation facts: (1) neither side will convince the other who will ultimately win or lose; and (2) the mediator will not dispense any form of justice. Instead, mediation is a negotiated business transaction.
Still, there is always a place for compassion at remote mediation.
Both the plaintiff and defendant should begin by offering an apology. Say "I'm sorry" for something — literally anything! It will totally catch the other side off guard, but in a good way. Plus, you can save face at a remote mediation by having the neutral deliver the apology with a message that promotes resolution.
10. Share your zealous advocacy (and screen) but forget the bluster and sneak attacks.
As an evaluative mediator, I appreciate when counsel can deftly parry my attacks on the strengths of their case. And since I'm a visual person, I really like when counsel shares their screen with me during a remote mediation to highlight a fact, document or case in their premediation submission that I can then use to convince the other side to offer more (or accept less) money.
But there can be a fine line between zealous advocacy and disrespect. Banging the table and losing your temper have the same adverse effect in remote mediation as they do in person. Also, the mediator does not want to hear about principles; your client compromised them by agreeing to compromise at mediation.
Finally, if your client has a smoking gun, do not wait until mediation to fire it. Instead, share this information in advance with both the mediator and your adversary so that everyone can prepare to address it productively at mediation and factor it appropriately into the settlement value of the case.
11. Some final hits and misses.
Like at the Oscars, I hear my Law360 editors starting to play me off as I close in on 2,000 words. Rather than thanking the Academy, I will close quickly with a few more bullet items to help you succeed at remote mediation.
- Don't lose perspective. Remember, it is a negotiated business transaction. You're basically buying (or selling) a used car. This can take a while, but don't vent at the mediator, take unreasonable settlement positions, or (gasp!) ever raise a demand or lower an offer.
- Don't rely on the mediator to learn the case at mediation. See, e.g., tip No. 8.
- Don't talk the talk unless you will walk the walk. Never make a "last-and-final" offer or demand unless you mean it.
- Do trust the mediator. The mediator has a much better gauge of the other remote breakout room than you. If early in the mediation the mediator suggests that you reconsider your next settlement demand or offer, take the hint. Similarly, do not be bashful about asking the mediator for help making your next offer/demand, or when to use a bracket.
- Do ask for a mediator number first. When the parties are getting close and the other side has just adjusted its settlement position, ask the mediator to value the case. Effectively, you have gotten the other side to bid against itself.
- Do dangle the boilerplate. Near the end of negotiations, but before the two sides have agreed on a number, interject other nonmonetary settlement terms (e.g., splitting settlement proceeds between W-2 and 1099) or tell them that you are preparing a term sheet. This psychological trick gets the other side hyperfocused on settlement.
Finally, do give remote mediation a fair shot. Better yet, since you may be stuck with remote mediation, take advantage of these 11 tips to obtain a fantastic outcome for your clients.
Eric B. Meyer is a partner at FisherBroyles LLP. He mediates employment law matters as a private mediator and volunteer with the EEOC and federal courts.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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