TRAVEL THE ROAD TO A SUCCESSFUL MEDIATION
Posted on Mar 28, 2016 |Publications
By: Susan Hernandez, Esq.
New York Law Journal Alternative Dispute Resolution Special Report
March 28, 2016
Two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference.
With apologies for borrowing the closing verse to Robert Frost's The Road Not Taken (often mistakenly called The Road Less Traveled), these words could very well be the opening lines to a poem entitled The Road to Mediation.
Having been the Chief Court Mediator in Bronx Supreme Court, and now, after participating in hundreds of mediations at NAM (National Arbitration and Mediation), experience has taught that Alternative Dispute Resolution is probably the best and most cost-effective way to resolve a case. Yet, experience has also taught that “travelers” seeking a resolution can choose only one of two divergent paths – the adversarial and costly, uphill climb that ultimately leads to a courtroom battle or the smoother, paved, cooperative road that ends in a successful and fruitful resolutions through mediation. This article is written in the hope that those seeking the Mediation Road will recognize that only one path will ultimately lead to certain success. There can only be “one road that's traveled.” So what is that path?
Cooperation, Preparation and Communication
In a word, it is the path of cooperation. A successful Mediator sees dozens of cases weekly and hundreds of cases annually. The Mediator gets a clear sense of when a mediation has a good chance of success and also when the mediation is doomed to fail, despite the best intentions of both parties – due to mistakes made prior to and during a mediation. It is not the Mediator alone that can make the process a success. It requires the good intentions, cooperation and preparation by both the plaintiff and defense.
Preparation by the parties is probably the most important part of the mediation process. Often times, the Mediator is sent vast amounts of documents before the mediation and yet the parties come to the table poorly prepared, not really aware of the good and bad parts of their case, with little to no forethought given to the positions of their adversaries. Additionally, the clients have not been properly prepared by counsel, and rely on the Mediator to “convince the other side” of the strength of their case. Of course, this is not the job of the Mediator which only makes the process more frustrating and difficult. Instead of voluminous submissions in hopes of convincing the Mediator of the merits of the case, the parties should position their cases for a settlement and not for a trial. This means preparing the client and knowing what the client should expect from a mediation. It also means communicating with the other side.
Preparation also requires confirming why mediation has been sought. For example, if it is to attempt to settle a personal injury matter, have demands been communicated or offers made? Have the positions of the parties been made known before coming to the table? Why did one side ask for the mediation? Often one of the parties will admit to coming to mediation because the other side asked for it. Don't expect a positive outcome if this path is taken. The right amount of preparation will determine, before the parties come to the mediation, whether there is a possibility of resolving the matter. Many times parties never convey demands or offers but still come to the table, or there is disagreement over them. This often leads to confusion or ill will and a firming of each side's position with the expectation that the Mediator will sort through the morass and convince one side or the other to either put up more money or take less and be happy with the process.
Thus, if the mediation is to be successful, the parties must communicate beforehand. Clear parameters must be set. Demands and offers should be made and any problems openly discussed. The parties should make sure that all information sought by each side has been exchanged. If an injured party is still under medical treatment, for example, it is most helpful to provide up-to-date medical information and reports before the mediation. All insurance information should be disclosed before the mediation. Preparation, preparation, preparation – just like it is the backbone of a successful trial, it is also the backbone of a successful mediation.
Often, voluminous briefs are presented to the Mediator, as if the sheer volume is a sign of the validity of the case. Rather than volume, only the most telling and pertinent papers, reports, testimony and legal positions should be submitted. All the depositions in the case are not needed. It is wiser and more economical (monetarily and mentally) to present only the salient points of a deposition or hospital records, the most telling injuries suffered and the reports that summarize the injuries. It must be remembered that the submissions need not be exchanged with the other side, and can be sent in confidence. It should come as no surprise then that the Mediator has been presented with, and has read, the submissions of each side without any expectation that those submissions have been sent to the other side.
However, in the spirit of cooperation and with a view to resolving the case, it may be wiser to exchange the submissions so as to prevent distrust of one side for the other. This does not mean that certain information cannot be withheld. For example, there may be an issue that one side wishes to hold for trial and not divulge to the other side at the mediation. It would be helpful to advise the Mediator that this has occurred, having full faith that the information will be kept in confidence by the Mediator and not divulged to the other side. The information kept in confidence may nevertheless help the Mediator when in private caucuses with the opposing side. Honesty is always the best policy with the Mediator. While demands and offers that have been disclosed are important, parties should be assured that everything discussed with the Mediator will remain private and confidential. This will also reinforce everyone's expectations that the Mediator will make every attempt to bridge the gap towards a settlement.
The Offer and The Ego
In every case, there is a person who has the authority to make offers and a person who has the authority to accept them. Often it is the injured client who has been fully prepared and advised of the process that is in the position to settle the matter. That client should be present during the mediation or, at the very least, be reachable by telephone so that offers approaching a fair settlement can be communicated by the attorney. By the same token, the person with ultimate authority to make a final offer should also be present or easily accessible during the mediation. Too often, the person with the authority to settle is supposedly just a telephone call away but cannot be reached during the negotiations. This results in frustration and distrust and should be avoided to prevent the risk of mediation failure.
In many large cases, the parties will insist that the plaintiff in an injury case or the principal adjuster be present during the negotiations. If this is the case, this requirement must be communicated to the other side in advance of the mediation or else the risk exists that one of the parties will refuse to mediate and will simply walk away from the table. Once again, communication between the parties and with the Mediator is essential.
Egos and threats have no part in the mediation process. The lawyers representing the parties are usually all successful litigators toughened by, and use to, the arena of a trial. Ego abounds. The adversarial process of litigation leads to punch and counterpunch with flare-ups not uncommon. It should go without saying that mediation is not a trial and that egos should be left at the door. The point of the process is to arrive at a settlement, not to threaten, cajole or engage in acrimonious exchanges. Asking the Mediator to resolve a non-adjudicated issue is an impediment to a fruitful exchange. Mediation is about resolution – not adjudication.
It has often been the case that lawyers with a past history of acrimonious engagements find themselves across the table from each other during a mediation. This may lead to a remark or veiled threat of what will happen during a trial which has then led to the complete breakdown of negotiations. If the lawyer is not able to deflate his/her ego, to cease with threats or to engage the adversary in a “fight to the death”, then that lawyer should not appear at the mediation but should send someone else instead. Everyone has an ego, including the Mediator, but that sense of self-importance needs to be held in check or the mediation will be in danger of collapse.
Bringing Parties Together
The mediation process requires that the parties understand that communication involves not only the exchange of ideas but concentrated listening as well. The parties must hear each other, consider each other's arguments and, above all, listen to the Mediator. It is axiomatic that a good Mediator must be adept at listening to each side and be able to glean what both sides are trying to ”say,” based on their verbal and non-verbal communications. Mediators develop a sense of where the parties want to be at the conclusion of the mediation and attempt to move them to that position.
But the parties must also listen and consider what the other side has to say and what the Mediator is communicating to them. There may come a time during the mediation that a party reaches the ceiling or floor where no further compromise in position can be made. But until that position is reached, communication is still the key, listening is still paramount and patience is still the rule.
Communication at the actual mediation begins with the joint session conducted by the Mediator. It is here, that each side will hear the general outline of the opponent's case and have the opportunity to speak directly to the other side. If the injured client is present, a decision will have to be made whether or not that client should be present at the joint session. However, it is most helpful for the adjuster or person holding the purse strings to be present at the joint session so that the general facts as presented by the other side can be heard. Once again, there is no need to exaggerate or act in a threatening manner during the joint session. The Mediator will already be familiar with each side's position so the session is really for the benefit of the parties themselves.
Usually after the joint session, the Mediator will caucus with each party separately to gauge the true positions of each side and get a sense of where the mediation might end up. During these caucuses, it is most helpful for the parties to be forthright with the Mediator in addressing not only the strengths but also the weakness of the case. Remember that the Mediator is not an advocate for either party and is not there to force anyone to a particular position. The Mediator is a neutral and has no dog in the fight before him or her. It is not helpful in moving to resolve the case to have one side or the other suggest that the Mediator should get the other side to agree to a certain position.
The Mediator may urge the parties to settle the matter, pointing out the weaknesses and the strengths of their respective positions. This may require the Mediator to act as a “devil's advocate” by expressing opinions on the positions taken. The parties may think that the Mediator is siding with his or her opponent. Rest assured, however, that this is not the case. The Neutral has been chosen by the parties as someone who is adept at bringing both sides together. This is all part of the mediation process. It is the Mediator's job to point out flaws in each case, and to have both parties consider factors that may not have been adequately understood beforehand. This is what the Mediator is supposed to do. During these caucuses, it is imperative that each side listen to what is being said, reconsider positions taken and be assured that the Mediator is acting for the ultimate goal of resolution. Communication is the key!
The Mediator and the Client
There are times during the mediation when one party may feel it is beneficial for the Mediator to speak with the client. While most are willing to do this, the Mediator is neutral and will not present arguments favoring or disfavoring either side. The Mediator can, and will, present to the client what has occurred during the process and will perhaps convey what should be considered by the client in making a decision to settle. However, the Mediator cannot, and should not, bolster the arguments of counsel or offer an opinion about whether or not to settle the case. In presenting the client with issues to be considered, the Mediator will remind the client that he or she is well represented, that they should trust their lawyer and, in the final analysis, should listen to their counsel who, unlike the Mediator, will offer opinions of whether or not to settle the case. In this way, the Mediator will serve as a true neutral without pressuring the client into making a decision.
The Road to Mediation can be a bumpy one, but if all parties are willing to communicate and negotiate in good faith, The Road Less Traveled could be the most productive path.
Susan Hernandez, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel, and is available throughout the New York Metro area for arbitrations and mediations. Ms. Hernandez was voted the #1 Mediator in New York State in the 2017 New York Law Journal Reader Rankings Survey and has been ranked a Top Ten Mediator for the past three years. She was also named a National Law Journal 2017 Alternative Dispute Resolution Champion, as part of a select group of only 37 nationwide for the second year in a row. Further, she was the recipient of the 2015 “Mediator of the Year Award” by the Institute of Jewish Humanities.
For any questions or comments, please contact Jacqueline I. Silvey/NAM General Counsel, via email at firstname.lastname@example.org or direct dial telephone at 516-941-3228.
Reprinted with permission from the March 28, 2016 issue of The New York Law Journal © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.