A colleague (Esther Bleuel) recently shared a quote by Benjamin Franklin:
“Failing to Prepare is Preparing to Fail.”
Recently, the Los Angeles Daily Journal published an article by Larry Mills entitled, How Counsel can make or break a settlement. (April 3, 2015- page 2 of Verdicts and Settlements). In essence, the article was all about preparation- a subject about which I have blogged numerous times and is near and dear to my heart! ( Using this article as a guide, the following are my own thoughts on the subject!)
There are several aspects to preparation. First, know your case. – both the factual and legal issues. Know the strengths and weaknesses of the matter, as well. As importantly, know what your client wants; what are her goals and objectives? What are her needs and interests? What is she trying to accomplish by this litigation? Her goals, objectives, needs and/or interests may not be in sync with yours as counsel or even with the strengths and weaknesses of the case. Your client may well be pursuing the matter for reasons having nothing to do with “the law” or with “winning and losing”.
Closely related, have a lengthy discussion with your client BEFORE the day of the mediation to discuss not only the substantive nature of the case but the process of mediation as well. People need time to absorb new ideas and to reflect. To have such a preparatory meeting moments prior to the start of the mediation does not provide the necessary time to ruminate, i.e., to think slowly and deeply about what is to occur. A party- not used to litigation- needs time to reflect. If a “reality check” is needed, it will not sink in if done moments prior to the mediation.
By doing the above, counsel cannot only work out a negotiation strategy – what opening offers and demands to make ̶ but also work out each succeeding round of negotiation. Analyze the best case scenario, the worst case scenario, and on what terms your client is willing to settle, or go to trial. All of this strategy should be mapped out before hand so that the best settlement can be obtained. “Winging it” just does not work.
In response to various court and state bar and local rules, and judicial “suggestions”, discuss the idea of attending mediation with your client early in the litigation. While one may believe that conducting mediation can be premature before all of the facts and issues are developed, in reality, the parties do essentially know what the dispute is all about and have the essential facts at the start of the dispute. Will conducting a lot of discovery really change the essential nature of the dispute? Probably not. More importantly, if conducted early in the process, a settlement may be more likely as positions have yet to harden, adverse parties demonized, and lines drawn in the sand.
Once the mediation is scheduled, prepare a brief. Not only will the brief benefit the mediator (so that the parties do not waste time and money bringing the mediator up to speed), it actually provides greater benefit to its author by causing counsel to focus on the matter; the facts, the law, the strengths and weaknesses. It keeps one from “winging it” at mediation which is not the best way to obtain the optimum settlement.
In this connection, share the brief with opposing counsel. Most times, there is really nothing “confidential” in it. The facts are public in nature as will be most of the legal issues. By sharing the brief with the other party prior to the mediation, counsel will “prime” opposing counsel about what a party expects, providing an “anchor” in terms of the settlement terms. There will be no surprises. In my experience, “surprises” at mediation have never succeeded then and there; the other party needs time to reflect and investigate the “sudden” turn of events. (If indeed, there is something truly “confidential”, add it separately for the mediator only.)
In arranging for the mediation, make sure ALL of the necessary parties can be present. Too many times, I have conducted a mediation in which the persons with the necessary authority are not present. Telephone calls have to be made across time zones which, if it is late in the day in Los Angeles, can be problematic. More importantly, to try to explain and summarize what is occurring in the mediation in a quick telephone call is not the same as being physically present. The person on the other end of the telephone may be multi-tasking and thus not totally “in the moment”.
And, last but not least… bring a draft of a settlement agreement. Even if you are 100 % sure that the matter will NOT settle, bring a draft with you. (As you are expecting the mediator to work “her magic”, don’t be surprised when she does!) Too many times, I have helped the parties settle matters that no one expected to settle, and then everyone stared at each other as no one brought a draft of a settlement agreement. So, telephone calls are made back to an associate at the office to fire up the computer, find an exemplar, cut and paste it and send it over. So, after hours of negotiating a matter to a successful resolution, and everyone is now tired from using so much glucose in negotiating, they now have to spend another couple of hours if not more (rather than less than an hour) working on the settlement agreement. I have heard tales about mediations in which the drafting and finalizing the settlement agreement took longer than the actual mediation simply because no one brought a draft with them. The parties had to start from scratch!
While there are other points that could be made, the ones above, hopefully, will be the most beneficial in reaching a resolution.
… Just something to think about.
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