By: Richard P. Byrne, Esq.
Many attorneys are familiar with the old adage, “Cases which get prepared for trial settle and cases which are prepared for settlement get tried.” On this spectrum, Mediations should be viewed as much more akin to a trial with “preparation, preparation, preparation” being the mantra chanted. Mediations provide that moment in time which is part of – yet removed from – the litigation process. They allow attorneys to advance positions to their adversaries (and, more importantly, to their adversaries’ clients) via direct presentations and indirect communications through the Mediator. Isn’t this, on some level, every attorney’s ideal? To have a conduit to the other side without the information passing through the filter of opposing counsel?
Why, then, do some attorneys not adequately prepare for that opportunity?
Oftentimes, it is just a matter of attitude – where the Mediation is not viewed as necessarily dispositive, and is simply seen as a weigh station along the litigation track – perhaps, as just a means to perform some “free discovery” and test parameters on settlement with the underlying thought that another session can be scheduled down the line. That, of course, assumes that you will not have lost the opportunity for a “re-boot” by frustrating and turning off the other side – who came fully prepared and ready to engage on all issues.
As a young lawyer, this Mediator once had a Senior Partner advise: “You may not be the smartest person in the room, but you can always be the best prepared.” Both sides, preferably, should come to the task at hand with that level of commitment – not only to honor the process – but as a demonstration of good faith that they are actively seeking a resolution on behalf of their clients.
What does the well-prepared side do, though, with an under-prepared adversary – other than to storm off dramatically with a declaration of “See you in Court!”?
A shrewd attorney will perceive the advantage, but not overplay their hand, recognizing that an under-prepared attorney may otherwise feel over-matched, become defensive, and have their flight instinct kick in. Employing preparation judiciously to impress – but not to overwhelm the other side – is like walking a tightrope. It is the antithesis of pounding the table and howling that the Mediation session is a waste of time. It is easy to chase a party away from the negotiating table. It takes a much higher degree of calculation, control and finesse to keep someone engaged who is ill-prepared.
The point is that an under-prepared adversary should not necessarily be viewed as an automatic liability to a Mediation but, rather, as a possible opportunity to resolve the case; albeit, in a somewhat different fashion than perhaps originally anticipated. Preparation, nonetheless, remains the watchword – it is the one asset that will provide the optimal outcome for you and your client – regardless of the circumstances which may be encountered.
Richard P. Byrne, Esq., is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2018, for the fourth year in a row, he was voted one of the Top 3 Mediators in the country by National Law Journal Reader Rankings Survey and for the second year in a row, he was named a National Law Journal 2017 Alternative Dispute Resolution Champion, as part of a select group of only 37 nationwide. Further, for the fourth straight year, he was voted a Top Ten Mediator in New York State by the 2017 New York Law Journal Reader Rankings Survey.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.