1. Lawyer Preparation: “Don’t Wing It”

There is a strong correlation between lawyer preparedness and obtaining a positive outcome at mediation. Lawyers need to fully understand the facts of their case and the applicable law in order to be able to explain the strengths and weaknesses of their clients’ positions and to understand how the trier of fact might view the evidence. Attorneys and their clients should engage in a risk assessment of their cases, taking into account their best-case scenario, their worst-case scenario and their most probable scenario. Sometimes a “decision tree” analysis can help them evaluate the risks associated with a summary judgment, winning or losing on various theories of liability, and ranges of possibilities on damages.

Before coming to mediation, lawyers should explore all available options for settlement with their clients, and the options should be ranked according to what the clients desire most. An attorney should thoroughly discuss and evaluate advantages and disadvantages with the client. At this point, a strategy for negotiating should begin to evolve.

It is important for counsel to discuss and understand the client's tolerance for risk. Otherwise, how will the attorney know if the client is able to withstand the crucible of mediation, let alone trial? Attorneys may want to “roundtable” a case with other experienced counsel and obtain their input regarding an appropriate settlement value, or perhaps seek suggestions as to the best approach to negotiate a particular case.

The presentation of the case in the initial joint session is a unique opportunity for the lawyers to “sell” their evaluations of the case to the other side. This might be the first time the clients have actually seen their attorneys in action, so it is a great opportunity for lawyers to impress their clients, as well as the other parties in the case. Therefore, they should take advantage of this time and be at their best, committing the amount of time and preparation this opportunity requires. Preparation for the presentation should be approached with careful thought and deliberation. All documents needed to prove clients’ cases should be available at the mediation conference. Lawyers should know important details about their clients’ lives and families: their ages, marital status, occupations, financial circumstances, and their emotional and psychological dispositions.

Mediation Summaries

Many court orders referring cases to mediation require attorneys to prepare summaries.³ The resulting mediation summaries provide an excellent opportunity for attorneys to prepare themselves and their clients for the mediation, and help to educate the mediator about the case. They are an excellent way for attorneys to impress their own clients with their skill and legal acumen. Some attorneys choose to share their mediation summaries with opposing counsel; however, many lawyers prefer to use the mediation summary to provide confidential information to the mediator. In any case, care should be exercised to follow the disclosure requirements set forth in the court’s order of referral to mediation.

Mediation summaries are especially helpful when they succinctly identify the agreed-upon facts of the case, highlight the important facts in dispute, identify the legal issues and the parties’ positions with respect to the legal issues, and provide the mediator with some historical background and context on the parties, the litigation and the current status of the case. Listing the status of ongoing settlement discussions, if any, and the goals, interests, and needs of the respective parties will also help the mediator navigate the mediation process. Summary judgment motions or orders may prove helpful when a legal question could dispose of the litigation. Copies of pertinent documents and pleadings can also provide the mediator with useful information about the case, but will rarely give the mediator full insight into the real nature of the dispute.

In the early days of mediation, it was quite common for lawyers and their clients to prepare for the mediation conference during the car ride to the mediation or on the subsequent elevator ride. Not surprisingly, this is not the ideal way to prepare for a process that has come to replace the proverbial “courthouse steps” when cases were settled moments before trial. Mediation is an extremely important event in a client’s case. It bears repeating: Lawyers and clients should prepare accordingly.

2. Client Preparation: Don’t Let Them “Wing It” Either

Mark Twain once said, “I spend a week preparing for an impromptu speech.” While it is not necessary to set aside an entire week to ready a client for mediation, client preparation is vital to success. Attorneys should set aside at least one hour to inform their clients of the goal of mediation and provide them with some details about the process.⁴ The clients’ interests, needs, motivations, concerns, and objectives need to be ascertained and any unreasonable and unrealistic expectations need to be dispelled.

Time should be spent redefining “winning” in the mediation context so that the clients understand that, in mediation, the goal is to obtain an acceptable settlement that is reasonable when compared to the probable outcomes and risks associated with an adjudicated decision by a judge or jury. Attorneys should advise their clients of the range of possible outcomes at trial and explore with the possible settlement outcomes, eliminating undesirable ones and developing strategies to reach the desired results.

Attorneys sometimes forget to explain to their clients that they can be active participants in the mediation process. Before mediation, careful consideration should be given to whether clients will speak during a joint session in which all of the parties and their counsel are present. Before mediation, there should always be a cost-benefit assessment by counsel and clients to determine whether clients should speak.

The essential question becomes: “Is there more to be gained than lost by having my client make a brief presentation?” With the right client in the right setting, this can be very effective. However, with the wrong client in the wrong setting, this can have disastrous consequences and seriously damage the possibility of reaching a mediated settlement. If a client is going to speak, then his or her lawyer should discuss with him the specific information that should be revealed and the matters that should not be shared. Attorneys must carefully and honestly assess their clients’ presentation styles and demeanors in determining whether they should speak during joint sessions. After all, only about seven percent of communication is verbal. Most communication is conveyed through body language and tone.⁵

Similarly, it is imperative that attorneys carefully review with their clients how they are to dress for the mediation process. Reasonable minds can and do differ, especially when it comes to something as personal as fashion, style, and taste. Demonstrate what is appropriate and what is not. Clients with allegedly serious back and neck injuries, unable to wear high heels because of those injuries, should not arrive at mediation wearing six-inch stiletto heels. Parties alleging serious economic and financial hardship should not attend mediations adorned from head to toe in expensive jewelry. Attorneys should monitor their clients. The impression they make will be a lasting one.

3. Selecting The Right Client Representative: “When in Doubt, Show Up”

When representing an entity or a group of parties, attorneys need to consider who is the best “face” for that entity or group. The client representative must have full decision-making authority, which is specifically defined in Rule 1.720(b)(1), Florida Rules of Civil Procedure, as the “party or its representative having full authority to settle without further consultation.”⁶

The rule provides additional guidance to insurance carriers for any insured party in subsection (b)(3) which requires that the representative have “full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.” Subsection (c) further defines full authority as it pertains to a party representative. In order to fully comply with the rule, the party representative must be the “final decision maker with respect to all issues presented by the case” and have the “legal capacity” to execute a binding settlement agreement on behalf of the party. Subsection (e) sets forth the procedure to be followed prior to mediation, requiring parties to file with the court and serve all parties a written notice identifying the person or persons who are attending the mediation as party representative or insurance carrier representative.

Once this legal mandate is satisfied, discretionary considerations should be evaluated. What type of demeanors do the designated representatives have? How will they be received? What presentation skills do they have? Do they have a history—good or bad—with the opposing parties, counsel, or their representatives? Are they good negotiators? Will they be able to forge a connection with the opposing parties, counsel, or their representatives? Would they be the right people to deliver an apology? Do these representatives have excellent “people skills”? Do they have the unique capability to tell the people to “get lost” in such a way that the opposing parties will look forward to the trip? Frequently, how the message is communicated is more important than the substance of the message itself. Attorneys need to bring client representatives who will enhance their negotiation posture, be productive in discussions, and favorably represent the face of the client.

4. Selecting A Mediator Who “Fits the Fuss”: Different Horses for Different Courses

The mediation community continues to debate whether a mediator’s knowledge of the subject matter of the dispute should be an important factor in selecting a mediator. Attorneys, the primary consumers of mediation services in Florida, consider content knowledge to be one of the determining factors in mediator selection. Often, one of the first questions asked by an attorney or legal assistant inquiring about a mediator is: “What type of cases does he/she handle?” or “Has he or she ever mediated in this area of the law?” Lawyers are frequently specialists who may⁶ feel more comfortable working with a mediator who has some knowledge of the counsel’s area of expertise.

Another important factor in selecting a mediator is the mediator’s “process” expertise: How well does the mediator facilitate communications and negotiations between the parties and their counsel? Is the mediator effective in helping the parties safely navigate toward resolution and away from impasse? Is the mediator patient, persistent, polite, and persevering? While effective trial lawyers need a “killer instinct,” effective mediators require a “deal instinct” to help the participants reach resolution. Can the mediator assist the parties in pulling a deal out of the chaos that was created by their litigation? An effective mediator should be able to command the respect of all the mediation participants, maintain control over the process, encourage and promote party empowerment, clarify settlement options, and guide parties toward a mutually acceptable resolution. Ultimately, resolution is up to the parties. Even the best mediators cannot bring about resolution when the parties desire an adjudicated outcome.

When selecting a mediator, it is important to inquire about the mediator’s background, experience and ability to obtain “closure.” Many advocates define a successful mediation as one that ends in a settlement and will seek a mediator who has the ability to bring about resolution. The value of a mediator’s reputation cannot be understated. Attorneys should believe that they and their clients are in the capable hands of a professional mediator who is competent and trustworthy and will respect the confidentiality of the mediation process. An effective mediator will have sufficient analytical ability to understand the legal issues in the case, and will help the parties and their counsel carefully evaluate the case—its strengths, weaknesses, and potential exposures to risk. An experienced mediator also will have the ability to help the parties generate the momentum needed to engage in the negotiating process and have the staying power to bring those negotiations to a point of closure.

Two other characteristics—style and personality—should also be considered when selecting a mediator. The mediator’s “style” may be facilitative, evaluative or transformative. Professor Leonard Riskin, Chesterfield Smith Professor of Law at the University of Florida, distinguishes among the evaluative, facilitative and transformative styles as follows:

• "The mediator who evaluates assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement—based on law, industry practice or technology—and that she is qualified to give such guidance by virtue of her training, experience, and objectivity.
• "The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Accordingly, the parties can create better solutions than a mediator might create. Thus, the facilitative mediator assumes that his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do.⁷
• "Transformative mediation is based on the values of ‘empowerment’ of each of the parties as much as possible, and ‘recognition’ by each of the parties of the other parties’ needs, interests, values, and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other ‘recognition.’ "⁸

Other scholars have challenged these characterizations, contending that, by definition, mediation involves consensual decision making through a facilitative process.⁹

Finally, counsel should carefully consider whether a mediator’s personality will "fit" with those of the parties and their attorneys. The mediator should be able to earn the trust and respect of the participants. The mediator should be sensitive to the interests and needs of all of the participants, while at the same time maintaining an aura of neutrality and freedom from bias. The mediator should also be able to exercise toughness and maintain control over the process and participants. Like a skilled referee in a boxing match, the mediator must ensure that the parties abide by the rules of the mediation process, remind them when they stray from those rules, and allow them to "fight" (i.e., negotiate) for themselves. The mediator should be a person who is able to establish a working relationship and rapport with all of the parties, while guiding them along the road to resolution. Parties need to feel comfortable with the mediator so they can speak openly and honestly, and feel safe when they need to vent their feelings and emotions.

Through her words and actions, a mediator should convey to the participants that they possess the confidence and skill to assist the parties in exploring the many avenues for resolving a conflict.¹⁰

5. Attorney Decorum: "You Can’t Always Get What You Want"

Don’t slam doors or burn bridges. Remember that negotiation involves consensus building, and consensus building requires cooperation. It is extremely difficult to obtain concessions from someone when you have just fired upon him with both guns blazing. The goal should be to persuade, not attack, the other side. One extremely valuable tactic employed by effective mediation advocates is to establish trust and build rapport with the other

participants. This process should begin at the very outset of the dispute, and continue thereafter. Aspire to be courteous and civil to everyone involved in the process. Adversaries may eventually become allies, as they may need to recommend to their supervisors that a settlement proposal is reasonable and deserving of consideration.

During opening statements, when everyone is sitting together in the mediation conference, lawyers should use language that is informative and measured, rather than incendiary and hostile. Their goal should be to persuade the opposing counsel and representatives to listen to what they have to say. They should provide a reasoned analysis of their clients’ positions and enlighten everyone with their wisdom and expertise. This is also an opportunity for mediation advocates to carefully listen to the legal theories advanced by the opposing parties and their counsel. This information can help them and their clients understand the other parties’ perspective on the case. This is also a tremendous opportunity to illustrate to clients that there truly is "another side" to the dispute, and the dispute will be decided by a judge or jury if the parties cannot resolve it themselves.

Attorneys should encourage clients to remain flexible in their negotiating positions. Always remember, in successful mediations, parties and their counsel may disagree, but they do so agreeably.

Stay tuned for Part 2 of this series, in which Jernigan and Blitman focus on 5 more ways insurers and their attorneys can prepare for mediation to facilitate ideal outcomes.

Footnotes

¹In 2012 the Florida Bar published the findings of its Special Committee to Study the Decline of Jury Trials. Those findings revealed that while the number of federal civil dispositions almost doubled from 1962 to 2002, the number of cases resolved by jury trials declined from 11.8 percent to 1.8 percent. While the number of Florida Circuit court civil dispositions more than doubled between the 1986-’87 and 2009-’10 fiscal years, the number of cases resolved by jury trials declined from 1.6 percent to 0.2 percent. Gary Blankenship, Panel Fears the Declining Number of Jury Trials may Undermine Public Confidence, The Florida Bar News (Jan. 15, 2012).

²See §44.102, Fla. Stat. (1987).

³State court judges in Florida develop and use their own orders referring parties to mediation. Some circuits have standard orders that all the judges in that circuit utilize. Many of these state court orders direct the parties to submit a mediation summary to the mediator. The Federal District Court (Middle District of Florida) Case Management Order contains a paragraph requiring parties to submit mediation summaries to the mediator at least 10 days prior to the mediation.

⁴There are a number of videos available to educate a client about the mediation process that may be accessed by contacting the American Arbitration Association, CPR Institute for Dispute Resolution and the Florida Dispute Resolution Center.

⁵Mehrabian, A., 1972. Nonverbal Communication. New Brunswick, Georgia: AldineTransaction.

⁶The Florida Rules of Civil Procedure apply to cases which have been filed in Florida's state courts. Federal court cases that are referred to mediation are governed by the Federal Rules of Civil Procedure and local rules adopted by the applicable federal districts in Florida – the Southern, Middle and Northern. Federal Case Management and Scheduling Orders referring cases to mediation often contain provisions defining full settlement authority and calling for the imposition of sanctions if parties attend mediation without the full authority to settle. Suffice it to say that lawyers representing parties in federal court need to be familiar with any rules governing the mediation process in federal court.

⁷Carole J. Brown, Facilitative Mediation: The Classic Approach Retains its Appeal (Dec. 2002)

⁸Zena Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (Sept. 2000)

⁹Joseph B. Stulberg, Facilitative versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 Fla. St. U. L. Rev. 985 (Summer 1997).

¹⁰While the scope of this article does not permit sufficient analysis of all of the mediator "style" considerations, at times it may be more appropriate to consider a mediator’s gender, as well as cultural or ethnic background. For instance, a female mediator may be better received in a civil case involving a rape. A mediator with a Protestant faith may be more appealing in a lawsuit against a Protestant church.