Mediation is now a staple of modern day litigation—required by many courts, suggested by many opposing counsel, and the preferred avenue of clients and carriers alike in avoiding the uncertainty of a jury trial. However, like all staples, its use during litigation can vary and much depends on the recipe and the chef. At Cipriani & Werner, our “chefs” have participated in several hundred mediations and have mastered the recipes necessary to prepare a successful mediation.
Gathering the Ingredients—Pre-Mediation
Prior to attending any mediation conference, our side of the table needs to assess goals and strategies; have a complete understanding of the settlement range of value; and a working knowledge of the process, including the mediator involved. These aspects should be discussed between lawyer and client prior to the mediation so that there is no missing ingredient discovered half-way through the recipe.Primarily, there should be agreement prior to the mediation as to what information will be communicated in the formal meeting with all parties and what will be held for private conversation. Simply, understanding what ingredients will be blended into the recipe early on and what ingredients will be added separately during the various stages of the mediation process is a key to a successful mediation and must be done before the process begins.The goal of mediation is to achieve settlement for optimum value and how to effectively communicate and attain this goal is also something that must be considered before the cooking begins. For instance, the role of the lawyer versus the “purse” needs to be fully discussed and agreed upon prior to entering the mediation room. As an example, the strategic decision may be made to have the attorney act as the recalcitrant “chef,” insulating the client with the checkbook. Alternatively, a more open approach may be used by communicating to the mediator a belief that there is ample authority in the room to achieve settlement, but that at some point, communication may be necessary with “home office.”Mediators are like spices, there are many different types and they all have a different taste—some may be sweet and some may be more biting. Knowledge as to the type of mediator you want and understanding the language spoken by the chosen mediator during the mediation is important so that your recipe can be adjusted accordingly. The majority of mediators fall somewhere between “messengers,” who see their role as simply a third party communicator to “facilitators,” who will use impartial persuasion to close the case at any number they can. The minority of mediators remain evaluators whose goal is to close the case for “the right number.” Regardless of whether the mediator is a messenger, facilitator, or evaluator, it is important for counsel to share this information early to construct a winning strategy and to recognize, and not misread, important cues during the mediation.Cooking to Perfect Time and Temperature—Mediation
You have gathered your ingredients, and at the mediation they are combined by the chef and cooked with the desired result being a settlement that is delicious, not just edible.
First, the smart participant recognizes that in the majority of mediations, including those under the Federal Mediation Program, the mediator’s sole goal is to settle the case… period; not to assure that the case settles for its “fair value.” Simply, mediators are not concerned with the cost of the meal, and therefore, are rarely interested in evaluating the actual claim. Rather it is the attorney that must be mindful and protective of his client’s costs, both real and perceived, when presenting offers and counters, and in advising the client how to proceed.
A myriad of issues need to be considered and re-evaluated as the mediation progresses: how the limits of authority will be communicated at various stages; when to appear optimistic, and conversely, when to appear pessimistic; when to heed or ignore the mediator’s views, if offered; and when to demonstrate that you are ready to walk away from the table.More often than not, a long day of mediation is capped by the “mediator’s suggested number.” While historically this has been a trick of last resort, it is now being used more often and put forth earlier in mediations. Thus, it is absolutely critical that the number suggested by the mediator be one within a client’s comfort range. It is foolish to believe that the mediation participant has no control over the number the mediator suggests. In fact, if the mediation process has been handled by a skilled mediation attorney who has communicated both directly and subtly the client’s settlement desires, the result should be a mediator’s number that is within the authority to resolve the case.
The “chefs” at Cipriani & Werner have been successful on every occasion when this tactic has been used because of the ability to communicate these desires effectively in the mediation process.
Regardless of the preparation, the recipe, or the skill of the chef in the kitchen, there are times when the other side of the table refuses to eat. Walking away from mediation does not mean the end of the meal. Although no one plans for mediation to fail, as it is both expensive and time consuming, it is sometimes necessary—at least initially—in order to make progress in any further negotiations that may occur in the hours, days, or weeks thereafter. Thus, it is imperative that the mediation participant be calm and not panic when it appears that mediation will not be successful. The threat of the other side to “walk away” may be a mere ploy to elicit fear of the failure of the process in order to gain advantage. Remember, it is not whether the mediation succeeds or fails that is important, but whether the case is ultimately resolved within the goals that were initially set. In that arena, the client and/or carrier typically have the advantage because they hold the money that the other side wants. Allowing the mediation process to “fail” may be a necessary element in achieving the ultimate goal of resolution. Understanding when that is appropriate requires sound mediation counsel.
Not all mediations are cooked the same: some boil and are done quickly, some must be cooked at a low temperature for a long period of time with constant basting, and some must be chilled overnight to achieve success. The true success of mediation is not simply the resolution of a claim or suit, but resolution within the comfort zone of the client. Cipriani & Werner is proud that over the last five years its “chefs” have used these principles as a recipe for a 99% success rate at mediation.