Ralph O. Williams III

Mediation Tips - Final Preparations

• Client Preparation Checklist
• Draft a Deal Memo
• Bring a Settlement Agreement on Disk
• Line up the Liens 
• Understand the Insurance Issues
• What’s the Plan?
• Don't Serve Documents at Mediations
• Consider Tax Issues Prior to Mediation
• Bring a Book
• Make Your Luck!

Client Preparation Checklist

Here is the checklist for the pre-mediation meeting with your client.

Discuss and explain these subjects:

1. The mediation process. 
2. Preview the cast of characters expected at the mediation; the mediator, opposing counsel, other parties and/or their representatives. 
3. What is expected of the client in a joint session and caucus. 
4. Evidence, ranges of outcomes and expectations. 
5. Case’s current discovery and procedural status.  

Give your client the following:

1. The mediation hearing notice including the place, date and time of the mediation. 
2. Written directions to the mediation office, where to park and the cost. 
3. Copies of all the briefs.

Finally, agree when, where and at what time you will meet the client before the mediation and exchange cell phone numbers, just in case there is a hiccup in the plan.

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Draft a Deal Memo

A deal memo sets out the key points necessary to complete a transaction.  By drafting a deal memo before a mediation, you can advance your case in three stages.

1. You and your client know what the negotiating points are and where there might be room for give and take.
2. In private caucus with the mediator, confidentially share the deal memo.  The deal memo becomes the mediation’s de facto agenda and the mediator knows what must be done to settle the case.
3. When you are confident that the other side is negotiating in good faith and progress is being made, allow the mediator to share your deal memo with the other side.  This will focus and accelerate the negotiations.

This three step process takes advantage of the psychological principle, “when you control the process, you control the result.”  The deal memo sets the tone for and controls the mediation, increasing your opportunity for a favorable outcome.

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Bring a Settlement Agreement on Disk

Many mediations are needlessly extended, negotiating details and documenting the settlement. Once the basic deal is agreed to, circulate the draft settlement agreement. This focuses and accelerates the final negotiations and documentation process. With the universal use of Word or WordPerfect, the final settlement agreement can be revised, printed, signed and distributed at the mediation's close.

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Line up the Liens 

Many cases cannot be settled without resolving liens, e.g. worker’s compensation, government retirement funds, prior attorneys and medical payments (auto, private insurance, MediCare and MediCal).

Before the mediation, determine the amount of any liens, the contact person for negotiating the lien and, if possible, the negotiating parameters.  Decide if the lien claimant needs to participate in the mediation and if so, in person or by telephone.  MediCare and MediCal generally will not negotiate their liens until after the case is settled.

Tip to plaintiffs’ counsel:  Controlling lien claimants usually enhances the plaintiff’s net recovery and lien claimant’s counsel can provide help with trial costs.

Tip to defendants’ counsel:   Purchasing liens at discount generates credits against a judgment and removes lien claimant’s counsel from the case.

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Understand the Insurance Issues

Understanding insurance issues (coverage, limits and consent) promotes communication focused on resolution.  Knowing if a loss is covered, partially covered, questionably covered or not covered encourages realistic dialogue about trial direction, scope of defense, probability of collection and settlement.

If policy limits are low and damages are high, discussion turns to the defendant's ability and/or willingness to contribute to settlement.  Many professional liability policies (doctors, dentists, accountants, lawyers and insurance agents) contain “consent to settle” clauses.  If there is no consent, settlement negotiations are at best, hypothetical and at worst, illusory.

Before the mediation, communicate with opposing counsel about the insurance issues, secure copies of the policy and any reservation of rights letters.  Consider making insurance issues the first order of business, so as not to waste time.

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What’s the Plan?

The business adage, “Plan your work and work your plan” applies equally to mediation.  Here are some thoughts to shape your mediation plan.

1. Your plan:  What is your goal for the mediation?  How will you manage the joint session?  Should your client talk during the joint session? How should you present your good points?  How to get information to and from the other side?  What information should you hold back to use to close the deal? 
2. The other side’s plan:  The other side’s plan usually is the reciprocal of yours.  Anticipate their positions and tactics.  What works best in response and when? 
3. The mediator’s plan:  After reading the briefs, most good mediators have a rough plan for the mediation.  At the first caucus, ask about the mediator’s plan.  Listen to the mediator’s ideas; they often reveal information about the other side’s inclinations.  Don’t be shy about giving the mediator your input on the process.

Back-up plan:  If the case is not going to settle, what can you accomplish during the mediation to make the matter resolve more favorably, faster and with less expense?  No mediation is a waste of time.  There is always information to be gained about the other side’s view of the facts and law.  Discovery can be ordered and focused.  And the dollar gap can be narrowed.

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Don’t Serve Documents at Mediations

Do not serve CCP 998 offers, discovery or other pleadings during a mediation.  Evidence Code §1119 makes all documents at a mediation confidential and therefore not usable in subsequent enforcement and/or motion practice.

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Consider Tax Issues Prior to Mediation

Often tax issues drive settlements in employment, business and family law matters.  If litigation counsel does not possess tax expertise, it is best to consult with tax experts prior to the mediation.  Armed with tax options, litigation counsel can protect the client from adverse tax consequences and work toward the most tax advantaged resolution.

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Bring a Book

Lawyers know that there is lots of downtime at a mediation, so they handle email on their Blackberries, bring work to catch up on and make phone calls.
But what about the clients?  In addition to client mediation preparation, tell the client there will be significant waiting during the day, while the mediator shuttles back and forth with the other side.  Let them know it is OK to bring a book, a computer (most ADR providers have open wireless networks) or even their knitting.

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Make Your Luck!

We want to believe that good results are a function of skill. However, luck also plays a part. Some people are lucky and some aren't. [alt: Why are some people lucky and other’s aren’t? It turns out that how we regard ourselves has a lot to do with how lucky we are.

British psychologist, Richard Wiseman conducted a fascinating experiment where he had people self-identify as lucky or unlucky. Then they were assigned to count the pictures in a mock newspaper. On an inside page he placed a half-page ad in 2-inch type stating:, "STOP COUNTING, TELL THE EXPERIMENTER YOU HAVE SEEN THIS AND WIN £250." A high percentage of the lucky spotted the ad, while almost none of the unlucky ones did.

How can we shift our mindset to lucky?

1. Sam Goldwyn was right when he said, "The harder I work, the luckier I get." In mediation, this means preparation. Write a great brief, call the mediator, prepare the client and be ready with a command of the facts, evidence, law and arguments.
2. "Say yes to the mess." Understand and accept your case the way it is, not how you or your client wish it was. There are no perfect settlements, events or experiences. Relax and be open to new situations and solutions as the day unfolds.
3. Recognize and seize opportunity. Watch the negotiation develop, compare it to your BATNA and your client's realistic goals, then close the deal.

Openness, hard work and decisiveness are the hallmarks of lucky people. Cultivate these qualities and bring out the lucky person in you.

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