September 2008 / NEIH

By Barry Weiner Given the increasing cost of litigation in terms of money, time and exposure, mediation can be an extremely effective tool in the resolution of disputes. When mediation is contemplated, however, there are several factors that should be taken into consideration in order to maximize the meditation opportunity. Timing One factor is the timing of a mediation. While a mediation and resolution early in the dispute may result in cost savings, limit one's exposure and bring finality, those considerations may be outweighed by others. For instance, the parties may not have sufficient information to make decisions on settlement; in that event, a voluntary exchange of such information or discovery in court/arbitration proceedings may first be required. Similarly, if the parties - emotionally or psychologically - require some "bloodletting" or simply reflective time to contemplate the situation and their settlement position, the timing may not be right. In those cases, while counsel might consider raising the prospect of mediation with clients and perhaps opposing counsel, the better decision may be to revisit mediation at a later date. Mediator selection While the timing may be right for the mediation to proceed, if the mediator is not right, the mediation may well be a waste of time. Accordingly, counsel should take the time to carefully review the background, experience, reputation and availability of potential mediators. Specifically, parties should look at the following when selecting a mediator: the mediator's training and experience with the process; the mediator's experience in disputes of the type and nature involved in the particular case; a mediator with a presence, which will definitely enhance the process; a mediator who will not only facilitate discussion among the parties but will evaluate claims as well; someone with a background as a trial lawyer, which is not an absolute pre-condition but may be helpful in fully appreciating the trial process and the chances of success; a mediator who is willing to adapt the process to the circumstances, parties and counsel; and availability on the dates selected for the session with the parties, as well as before, during and after the mediation. The mediator must be able to give you his or her undivided attention for the time the case requires. In other words, don't shortcut your due diligence on selecting the right mediator. Carefully think through how the candidate matches up with the issues and the parties involved, and don't be afraid to ask questions and seek commitments. If, however, the candidate is unavailable to respond to your questions, move on to someone else. If he/she is that busy, the odds are that they won't be able to give your case the kind of attention it warrants. Pre-session contact with mediator In order to maximize the opportunities presented by a mediation, the mediator should, prior to the mediation session, speak with counsel, collectively and individually, to fully appreciate the factual, legal and practical issues that separate the parties. In my experience as a trial lawyer and mediator, these pre-mediative session discussions are of great value in identifying the parties' common interests in a resolution and substantially improve the mediator's preparation for the upcoming formal sessions with the parties. Those discussions also will enable the mediator to customize the formal process to set the stage for a resolution (for instance, exploring the value or lack thereof of opening statements in the formal session and by whom). Given the importance of these pre-session contacts, counsel should explore with mediator candidates their usual practice on engaging in such discussions. Formal mediation session With the decision to mediate having been made, a mediator selected and pre-session contact with counsel completed, the mediation sessions with the parties can begin. After an initial get-together, consisting of the mediator's greetings and summary of the process and whatever openings have been agreed to, separate break-out sessions with the mediator are in order. Following an appropriate period for venting, the mediator in these separate meetings should explore with each party what the party believes is a fair basis for a resolution. The mediator should also be prepared to explore options with the parties. Ultimately, the mediator needs to identify a commonality of interest among the parties and develop a shared basis on which the matter might realistically be concluded. Beyond the mediator leading and facilitating the discussion, the active participation of the parties and their counsel is a critical component if an agreement is to be reached. A prepared and skilled mediator alone is not sufficient. Facilitation and evaluation In the development of these discussions, most parties and counsel expect, desire and need from the mediator a balance between facilitating and evaluating. While the process is designed for the parties to reach agreement through the facilitation of discussion with the mediator, at some point mediators should be prepared to offer evaluative comments as to positions to continue moving the discussion along to a resolution. However, evaluation should not happen too soon in the process because there can be nothing more destructive than a mediator with no patience who insists on offering opinions at the beginning of break-out sessions on how to resolve the dispute; it is a sure way to adversely affect confidence in the process and in the mediator and to anger the parties and counsel. Conversely, if a mediator steadfastly refuses to offer evaluative comments, the mediation will be negatively affected as well. To effectively deal with this issue, counsel should specifically discuss his/her expectations with the candidate mediator at the interview stage. Mediator follow-up If a settlement has not been reached by the conclusion of the formal mediation session(s), the mediator should declare his/her intention to further explore a resolution through follow-up telephone calls with counsel. Unless the parties instruct the mediator not to do so, the mediator should be persistent in making those calls in an appropriate time frame. While some cases just will not settle, with time to reflect and re-evaluate a resolution can still be reached with some persistent mediator assistance. Given the foregoing, counsel should confirm with mediator candidates during the selection process their "practice," if any, following an unresolved formal mediation session. If the candidate evidences no intention/willingness to follow up, move on to another candidate who will so commit without having to be prompted; as with pre-session contact, such mediator persistence is that important. Agreement When and if an settlement is reached, the mediator, with the assistance of counsel, should prepare a written agreement to be signed by the parties before the post-session conversations conclude that day, even if it is subject to a more formal agreement. To the extent disputes arise about finalizing the formal agreement, the parties should also include a clause authorizing the mediator to be the final arbiter of such dispute(s). Conclusion While the process I have described above to maximize the mediation opportunity may increase the time required for most mediations (from 10-15 hours to 20-30 hours), the total increased cost is but a small fraction of litigating a matter to conclusion through trial or even dispositive motions. Keep in mind that preparation, patience and persistence are the key factors in success by the mediator and the parties. A founding partner of the Boston-based law firm of Ruberto, Israel & Weiner, Barry Weiner has been a business trial and appellate lawyer for over 40 years. He has also served as an arbitrator, a mediator and a master in the courts, and he teaches advanced alternative dispute resolution at Boston University School of Law. He can be reached at byw@riw.com or 617-742-4200. Reprinted with permission from New England In-House, a bimonthly publication of Dolan Media. © 2008 Dolan Media, All Rights Reserved.