How to Get Through Your First Mediation, and What You Expect
by Norman Brand
They didn't prepare you for this in law school. You have agreed to mediation (either voluntarily, or because the court requires it),
and you are about to contact your opponent to talk about which mediator to use and when to hold the mediation. You may have
even rescued several earlier Practitioner columns from the bottom of your parrot's cage and decided on what type of mediator
(high or low profile) and mediation (information or process centered) you need for this case. You have talked with your
colleagues, who suggested various names. You have discussed potential mediators with your client, you have some names in
mind, and it is now time to try them out.
Your opponent has also done her homework. She, too, has names. Do you fight to the death over which mediator to use, go
back to court to get one appointed, or compromise? One approach is to try agreeing on the qualities you are looking for. If you
can agree on those qualities, you can explore why each of you believes the people on your list have those qualities.
If you cannot agree on qualities, perhaps you can agree on disclosure and a random method of selection. By disclosure, I mean
what you would like to know about the persons suggested by the other side. What would you agree would be a disqualifying
factor? You can send a joint letter to three or four people, describing your interest and asking for their expertise or any
connections to the other party or counsel. This may eliminate one or more of the potential mediators. For choosing among the
remainder you can -with your client's permission - use any random method.
Wait a minute. Did he advise using a "random" method- such as flipping a coin - to choose a mediator in a case that is this
important? Yup. Here is an exclusive mediator secret, not usually revealed in print: If the parties are actually ready to try to settle
their dispute, and they know what type of mediation and mediator they want, there are dozens of competent mediators who can
bring the dispute to resolution. And that is the secret you must share with your client. The success of the process does not depend
on getting the perfect mediator. It depends on the readiness of the parties to settle.
Once you have agreed on a name, it is best to send a joint letter, giving the case caption and names of counsel, to the mediator.
At the same time, call the mediator to ascertain availability. You need to be flexible about scheduling, and plan on a full day.
Mediation is not a quick process, but patience is usually rewarded.
Do not be surprised if the mediator sends you an agreement to be signed by both sides. Certain items are often included in these
agreements. First, at least until Jan. 1, 1994, the mediator will undoubtedly set out the text of subdivisions (a) and (b) of Evidence
Code section 1152.5, the current statutory requirement for confidentiality. Second, mediators who are attorneys may include a
written statement explaining the role of a neutral intermediary and noting that the mediator cannot act as an advocate for either
party. Although this statement may seem superfluous when clients are represented by counsel, cautious mediators may include it to
satisfy professional liability insurance requirements.
Third, the mediation agreement may require the parties to agree upon immunity and indemnification for the mediator. Though the
possibility of successfully suing a mediator is remote, this kind of provision keeps even the best financed party from being able to
exert improper pressure on the mediator during the course of the mediation. Fourth, the mediation agreement should set forth the
mediator's compensation. Ordinarily, mediators charge by the hour, and many charge for a minimum numbers of hours, since they
normally block out a full day for a mediation. Some mediators will require a statement of the case from the lawyers prior to
mediation. How you prepare that, and your client, has been considered in other columns.
When you get to the mediation you can expect certain common behaviors, although mediation styles vary. Most mediators make
some sort of "opening statement." The purpose of this statement is to take care of housekeeping details and set up ground rules.
Housekeeping details include introducing the participants and the mediator, checking to be sure parties with authority to settle are
present, finding out if there are any time constraints, and describing the location of caucus rooms, rest rooms, and telephones. The
ground rules usually include acknowledging the confidentiality of communications made to the mediator, a commitment to civility
and respect in the mediation, and a requirement that parties not interrupt each other. The mediator generally assures both parties
they will always have a chance to respond and be heard.
The mediator then describes the process that will be used to bring the parties to resolution of the dispute. Most mediators use
separate caucuses in which each party speaks privately to the mediator. Three aspects of these caucuses are usually emphasized.
First, most mediators assume the confidentiality of what is communicated in the caucus and ask permission before conveying
information to the other side. While a party may initially be reluctant to allow the mediator to disclose certain information, it is
sometimes critical to the process. For instance, if you have the "smoking gun" and tell the mediator about it but do not allow the
mediator to convey some version of this information to the other side, the information will not help resolve the dispute. Few
mediators would think it worthwhile to try to move the other side on the basis of "secret" facts.
Second, mediators often use the caucus to play "devil's advocate." The mediator will try to assure the parties in advance that
appearing to take one side "for the sake of argument" does not mean the mediator is necessarily convinced by that position.
Rather, it is a technique for exploring the underlying interests of the parties. This must often be explained again during a caucus
because parties have become so invested in their positions that alternative views evoke an emotional response. Third, mediators
usually explain that the amount of time spent in a particular caucus in not indicative of anything. Clients sitting in one room while the
mediator is in another room with the other client and his lawyer may fear they are not getting equal time, or suspect - quite
accurately - that the mediator is discussing their position.
Most mediators try to ascertain whether the parties understand what the process is going to be, answer questions, and gain the
assent of the parties to participating in the process. After the opening statement there is a great deal of variation in how mediators
operate. I spend some time trying to test the parties' appreciation of the inevitability of resolution (through the full panoply of
litigation, or some agreed upon resolution) and their understanding of the costs (direct, indirect, financial, emotional, and
intangible) of continuing a dispute . I also give the lawyers an opportunity to present the legal position of the case in the presence
of each other. Other mediators go directly to caucus in order to ascertain the positions of the parties.
Somewhere early in the mediation, most mediators ask clients to tell their stories. While some call this "venting," I consider it the
most important part of the mediation. Only clients know their real interest in the dispute. Most mediators engage in "active
listening" to be sure they understand what the client is saying.
Mediators react differently to lawyers who try to structure their clients' response, interject, or "protect" their clients from
themselves. At one pole, the mediator may ask to speak to the client outside the presence of the lawyer. At the other pole, the
mediator may not react at all and let the lawyer take charge. In my view, it is important for lawyers to remember that this is the
client's dispute, and only the client can ultimately accept or reject a settlement.
At some point, the mediator will begin to shuttle between the parties, conveying possibilities and trying positions. Do not be
surprised if, when you say to the mediator, "You tell them such and such," the mediator refuses. One of the tools that mediators
use is their ability to control the timing of exchanges of positions and information and their ability to phrase neutrally a contentious
position. In addition, do not be surprised if the mediator waits some considerable time before talking dollar ranges and settlement
ideas. Because the parties have often focused exclusively on dollars and failed to explore their interests and the possibilities for
settlement, mediators do not like to simply convey dollar offers early in the mediation.
If the mediation goes well, the parties will reach a settlement. Most mediators will not let the parties leave until some document
embodying the agreement has been written and signed by everyone. While there may be a need to further refine the agreement, it
is vitally important to reduce the major aspects to writing. This protects the lawyers as well as the clients. It is fairly common for
parties to subconsciously convert their mental construct of the deal they "might have gotten" into a belief that was what they
agreed to. With a written agreement, the lawyers can simply point to what the client signed.
When going into your first mediation, expect success. You are unlikely to be disappointed.