by Andrew Flake
I’ve enjoyed the Harry Potter books and then movies as they’ve come out over the years. They’re filled with clever details and creative touches, like portraits that move and interact with the viewers (I suspect there was a Harry Potter fan at Apple when the “Live” photo feature was developed). What I had not considered, until I attended an exhibit this weekend that focused on the films specifically, was the truly tremendous technical and creative effort involved in making the films. From the shape of a wand, to the fabric in a costume, to the masonry in Hogwarts castle, there are thousands of underlying details.
In the same sense, if on a much different scale, a successful mediation is much more than the in-person meeting. It involves detailed work before the parties ever meet, requiring consideration of the facts and legal issues, the harms alleged and sustained, and of a host of potential intangibles. In commercial cases, those include the business climate, the market, the interests of the various stakeholders, their relationships, the level or lack of trust and communication among them. A good mediator will need and want to understand the core legal and factual issues as well as those intangibles. A good advocate will need to help her do so.
As a recent meeting of our Cooper Inn of Court here in Atlanta, I served as a panelist, along with one of our federal judges and a highly experienced in-house counsel, to discuss this very issue, how the advocate can best work with and assist the mediator. I’ll elaborate on how to do that in a moment, but I can summarize in a word: prepare. Prepare for a mediation with the same level of focus, thoughtfulness and detail as you would for a trial. Prepare by spending time to think about the case, and making sure you arrive at the mediation table with a strategy and a plan.
Let’s start with mindset. Yes, the mediation is occurring in a larger adversarial context, but remember that you are working for a systemic good, giving your client peace of mind and security in business, while accomplishing something that will be an unqualified good for our judicial system. That often requires a shift in viewpoint and approach, bringing in more openness to understanding what the other side may be saying, and considering candidly both the strengths and weakness of one’s own position. Just as it’s important to put your client’s best foot forward in the mediation statement, it’s equally essential to have an open mind and be prepared to listen to the other side.
Having that understanding will make it easier to address the concerns in the other room that might be preventing a deal. After all, your ultimate goal — and requirement for any settlement — is not convincing the mediator that a deal makes sense. It is convincing the other side. The mediator is using her own skill and resolution tools, with the background and briefing you provide, to help you do so.
Which brings me to the next point: start early to communicate with your mediator. Take time to speak with the mediator before the mediation session. This is an opportunity to build a relationship with the mediator and gain insights into their mediation style, and to help them start thinking about the pathways to resolution.
When I am mediating, I will schedule initial calls with counsel right away, and ideally, with some weeks between that call and the mediation session. It is often possible to begin the mediation process here, helping counsel to clarify issues and concerns with one another, and ensuring that the parties maximize their in-person mediation.
From counsel’s perspective, beginning to communicate with your mediator can help you to prepare and tailor your approach to the mediation. You can also gain useful insight: the mediator can share experience in similar cases, and will let you know their expectations for the session, and any potential challenges they foresee.
Based on those early discussions, then make sure to spend time on your mediation statement. The written assessment you provide to the mediator before the in-person session is your opportunity to set the tone and outline your client’s position in the case. Make it concise, clear, and organized.
It is more than just a restatement of, say, a summary judgment brief. Along with the relevant facts, the sequence of event events, and the major disputes of fact and law, touch on those intangibles that need to be addressed, along with any impediments and challenges to settlement.
A recurring questions is whether to share the mediation statement with the other side. Like many aspects of mediation, the answer is, it depends. I do not generally require lawyers to exchange their statement, but I explore with them whether it would make sense to do so, at least as to some portions. The more alignment that counsel on both sides have, in advance, as to at least what is agreed, and where disagreement lies, the more productive the in-person mediation will be.
Lastly, make sure you involve your client, encouraging the necessary mindset and explaining the process. Discuss their goals and expectations for the mediation process, exploring desired outcome and considering what will need to occur to reach an acceptable settlement. Consider too those potential barriers to settlement, the business constraints, the emotional factors, the issues of reputation and/or continued interaction or future dealings.
Apart from ensuring the best chances of settlement, making sure the client understands the mediation process and involving them in the development of the mediation strategy and approach helps them feels represented and heard.
By the way, if you recognized “Alohomora” in the blog title as the unlocking charm from Harry Potter, you may be a wizarding afficionado. Unfortunately, there’s no spell to cast, or wand to wave, to settle at mediation. Doing that requires the right mindset, collaboration with the mediator and your client, and careful analysis of your case and the associated intangibles, all on the front end. But if you do commit to the process, if you take the time and effort to prepare, get ready: you just might work a little magic.