There are many elements to a successful mediation. In my view, each one must be approached thoughtfully—be it strategy, planning your mediation memorandum, discussing both sides of the case with your client in advance, preparing and delivering open remarks, and coming to the table with an open mind and with practical willingness to negotiate with the other side.
In this article, I have collected tips on these very elements from the Masters of Mediation— seasoned lawyers and mediators alike. Things like what makes for effective and compelling mediation memoranda, the do’s and don’ts of opening remarks, how to prepare your client for mediation, negotiation strategy, and everything in between.
1. The Mediation Memoranda
In my view, an effective mediation memorandum begins with a compelling theory of the client’s case—one that is rooted and supported by the evidence. Once the theory is mapped out, its time to put pen to paper, so to speak, and bring your theory to life without bogging down your reader(s).
Mediator Jay Rudolph of Rudolph Mediation & Arbitration Services recommends that the memo be prepared “more for the other client than for the other lawyer” because “you are trying to persuade the other client more than the other lawyer”.
Lawyer Kathryn Manning of DMG Advocates LLP advises:
An effective mediation memorandum tells a persuasive, clear story of what happened from your client’s perspective and [sets out] why the facts and law favour your client’s position. It is not a repeat of the pleadings, nor is it the place to put every document in front of the mediator.
The memorandum:
should demonstrate your client’s willingness to listen, to compromise and to realistically assess its position.
Jay Rudolph echoes the sentiment that only relevant documents should be appended to the memoranda.
Family law mediator, Julia Tremain of Waddell Phillips P.C. views the mediation memorandum as a work of advocacy, different than written advocacy put before the court. She recommends that:
as a lawyer, you should work to keep your memorandum persuasive but not inflammatory (as some court documents can certainly be). Limit the brief to the actual issues at hand. Set out the evidence that supports your client and the outcome that your client is looking for. Do not waste the mediator’s time with a litany of the other side’s malfeasance unless it is directly relevant to an issue that is being mediated. Keep focused on why you are there and what you want to accomplish. Avoid ranting about the other side – keep the focus on your client. If you do want to go into something in detail, put it in your brief so that it is easy for the mediator to refer to.
Credibility is key to an effective mediation memorandum. In my view, this can be accomplished by making concession where appropriate. On this point, Rudolph emphasizes the importance of conceding matters that are not in dispute, and focusing instead on the real issues. He says:
concede facts that should be conceded if they are obviously not in dispute. For example, if liability is not in dispute for purposes of the mediation, the defence lawyer should say so in the memo. On the other hand, if the defence puts liability in dispute, the plaintiff’s lawyer should address the issue of liability with reference to the evidence from the discoveries and any documents. If the defence raises the issue of contributory negligence and the plaintiff lawyer agrees that there is a risk, the plaintiff’s lawyer can acknowledge that there is a risk of some contributory negligence and submit that the percentage should be small.
He adds, that “in appropriate cases, you can attach relevant cases that may be important to the issues in dispute.”
Rudolph also notes that:
[language in the] memo should be polite and respectful of the other side. Separate the people from the problem. The focus should be to respectfully point out the strengths in your case and the weaknesses in the other side’s case. It is okay to acknowledge some of the strengths in your opponent’s case.
2. Opening Statements
When it comes to an effective opening statement, Manning recommends brevity:
There is usually no value in long openings that hit on the points that are already in the mediation brief. Often, mediations that are most successful do not have any openings other than the mediator speaking to the parties about the process and their approach to mediation. If there are opening statements, the most effective ones are concise, focused and non-inflammatory. Getting the other party’s back up at the outset will not set the tone for a productive mediation.
Tremain is also a fan of the “less is more” approach. She suggests that the opening statement “outline[s] what your client is looking to achieve” and makes the “client appear reasonable and open to alternative solutions”. Tremain also recommends that opening remarks be focused enough to ensure that the mediator can see the ‘big picture’ and properly identify the relevant issues.
Rudolph has a number of tips for successful and effective openings. In addition to using the opening statement to establish rapport with the other lawyer, he recommends the following:
- Direct your comments more to the other side than to the mediator. The mediator will understand what you are trying to do;
- Address the issues that are in dispute while at the same time, emphasize the areas of agreement, if any; Focus on strengths, weaknesses and risks;
- Whether you are acting for a plaintiff or a defendant, prepare your client to say a few sentences. I think that it should be the exceptional case where a client (especially a plaintiff) doesn’t say anything; and
- Emphasize at the beginning and at the end of your opening that you and your client are present to work hard to reach a “fair and reasonable” settlement.
3. Preparing Your Client for the Mediation
Preparing your client is important. The consensus is that clients should be made aware of the process and roles of the parties, and the strengths and weaknesses of both sides. The objective here is to draw out your client’s bottom line, and manage their expectations.
Lawyer David Milosevic of Milosevic & Associates, Trial and Appeal Lawyers emphasizes the importance of managing the client’s expectations for mediation:
Help your client become realistic about the settlement amount a mediation can offer. Being overly optimistic and not managing client expectations will likely result in a failed mediation. The client may be offended by the offers, and see them as an attempt o “lowball” rather than as a calculated amount designed to reflect the time value of the payment and incorporating a discount for the costs and risks involved.
Building on the theme of client expectations, Rudolph also says:
Preparing your client for the possibility of settlement at a mediation really starts by managing your client’s expectations at the very beginning of the case and continuing to do so throughout the litigation. This involves keeping your client informed of the strengths, weaknesses, risks and uncertainties in his or her case. In other words, your client should have realistic expectations throughout the litigation process. If this is the case, preparing the client for the mediation is just another step in the litigation and there shouldn’t be any major surprises for the client.
Rudolph further emphasizes the importance of explaining to clients exactly how the mediation process works:
When acting for a plaintiff who is not going to be familiar with the process, explain the mediation process to the client and make sure he or she understands it (joint openings, caucuses with the mediator and without the mediator and the mediator’s role which will involve “reality testing” in both rooms).
Manning echoes this sentiment and stresses the importance of knowing what the client is looking for before heading in:
Clients need to understand the process, the issues that may arise, and how the mediation may progress. Key to this is knowing what your client wants to get out of the mediation – do they want to settle or do they want to test the other side’s case and see what a neutral third party thinks about the case so that they can assess their own expectations for the strengths/weaknesses of their case.
Family law lawyer Margarit Jo says its important to deduce from the client points of concessions:
Have an honest conversation with your client about his/her hierarchy of importance of the issues. What are the “small potatoes” issues that you are willing to concede on, versus the issues that are crucial and non-negotiable for you?
Tremain emphasizes that clients should understand their level of control in mediation process:
The client needs to understand that this is their process – that they have control over what will happen. And of course even if they are not particularly happy with the outcome, as long as they can live with the result, the mediation was likely successful (I do not usually tell them at before the mediation!). I try to emphasize that they have more control in a mediation than they will ever have in court, and that they know their family far better than any judge ever will, so this is their opportunity to try to reach an agreement that will work for everyone.
In addition to managing expectations, explaining process and control, and discovering the client’s objectives for mediation, it is important that the client walk in with an open mind. On this note, Rudolph adds:
It is very important for both the lawyer and the client to keep a very open mind when coming into a mediation. Although it is good to have goals, it is better if they are soft goals rather than hard lines in the sand.
4. Negotiation Strategies and Process
Even before the exchange of offers, its important that counsel and their client know what they are looking for. According to Tremain, everyone involved in the mediation should “know the agenda, the issues, and the priorities. Clients and counsel need to know their bottom lines” [emphasis added].
When it comes to effective negotiation strategies, Milosevic recommends an unhurried approach:
Do not reveal your bottom line position to early. Hold back, feel out the situation, and move slowly. There is no rush at the start of the day. Best to get a sense of the other side, perhaps discuss methods of structuring the settlement discussions, rather than starting with any numbers.
Milosevic also notes that different mediations call for different structuring approaches:
A large element of that structuring is deciding whether to approach the settlement amount as an itemized list (separate amounts for each head of damage, costs etc), or a global, “all in” number. Different cases call for different approaches. I like to use a pared down itemized list. It allows some leeway to reduce on categories that may not be as strong, but maintain position on stronger items or heads of damage. Defendants may resist that approach, as it often results in a larger overall settlement number. Either way, take it slow. Time is your ally in getting to a number on the plaintiff side.
Rudolph provides a number of practical tips, from having a ready-hand first offer to turning to the mediator for opinions and support:
- Especially when acting for a plaintiff, have your first offer ready before the start of the mediation. It is always a challenge to formulate a first offer that is justifiable but is not so high so as to turn off or anger the other side.
- Use the mediator’s negotiation expertise. I can’t emphasize this enough. Ask the mediator what he or she thinks of an offer that you are contemplating making. Ask the mediator what he or she thinks may be the response by the other side to an offer.
- Give the mediator information that may help the mediator address the other side’s concerns in the other caucus room. This could be reference to specific facts or specific documents. Although the mediator should be well prepared, he or she will not mind being reminded of a point to make.
Tremain acknowledges that contentious issues in family law may require special handling:
- Sometimes people need to regroup, so a break may be in order. Or it might make sense to put a particularly contentious issue aside and try to work on something else. One thing that can be quite effective is “building blocks” – getting agreement on small issues so that progress is clearly being made. Then the mediator and clients can work on resolving the bigger issues.
- Sometimes it is important to try to get at the underlying issues (interest-based mediation) but other times the mediator may not want to give one or the other party a platform to air their grievances. Keep the focus on looking forward and not backwards. Have a focused agenda and plan in the event that things go off the rails so that everyone can regroup.
- I think there are two schools of thought re whether to tackle the really challenging issues first, or go with the more straightforward ones first – sometimes it can be difficult to ascertain which is which. The mediator may decide that one issue should be dealt with first – for example, a pressing child related issue – but it is important that the mediator also know which issues are priorities for each of the clients.
5. Other Tips
The Masters of Mediation provide some other tips for an effective mediation, even if the mediation does not result in resolution of the litigation. On this point, Rudolph says:
- If the mediation is not going to result in a settlement, use the mediator to figure out why (for example, missing documents or expert reports) and use the mediator to try to put the parties in the best position possible to continue with the negotiations at a later date.
- Always say goodbye to the other side, whether the case settles or not.
- Consider following up with the mediator if the case doesn’t settle to initiate further settlement discussions with the other side or possibly a further mediation.
In the context of family law mediation, sometimes a partial resolution is still a positive result, according to Jo:
It is okay not to settle all issues in mediation; even if only one issue settles out of many, this demonstrates that you and your ex-spouse are able and willing to work towards resolving this out of court.
Conclusion
As discussed in this article, the elements of an effective mediation begin with managing your client’s expectations throughout the litigation, including at mediation; informing the client about the mediation process and drawing out their bottom line and concession points; memorializing into the mediation memoranda a persuasive and compelling theory of the client’s case that is rooted in the evidence and that will not bog down the reader; adopting an unhurried approach to negotiation; and turning to the mediator for guidance and support when necessary.
Author's Note
I wish to thank the contributors to this article, David, Jay, Julia, Kathryn and Margarit. They are the heart of this article, and I am so very grateful for their generosity and time in their preparing these tips for me — and for you!
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