In California, fewer than 5% of civil cases filed actually go to trial. Some actions are dismissed or terminated on motion, but most cases settle. Given this reality, you need to be ready for a successful mediation.
Here are 10 steps to preparing your case for successful resolution through mediation:
1. Time it right. What’s the best time to mediate? As with many legal questions, the answer is that it depends. Early settlement can save significant time and money, but there may not be enough information known to make settlement possible. As you work through the pretrial stages of a case, be alert to opportunities to resolve it at an early stage.
2. Have a pre-mediation chat. Attorneys should feel free to contact the mediator directly before the mediation to discuss the case and seek advice on how to proceed. Such communications are part of the mediation process and are covered by the mediation confidentiality provisions of Evid C §1119 and the more general settlement conversation confidentiality provisions of Evid C §1152.
3. Use brief opportunities. Submit a mediation brief early enough for the mediator to be able to review it carefully. For the plaintiff, the brief is an opportunity to specify all items of damages sought and the legal authority and documentation in support of those items. For the defense, the mediation brief is an opportunity to take apart those claims or to challenge the legal authorities under which plaintiff’s claims are made.
4. Consider chronology. If the timing of events matters in the case, include a clear, separate chronology in the brief.
5. Analyze value of causes of action. It is often helpful to analyze the causes of action or potential causes of action in the case to assess the “value” of the case and the risk of not settling. This is especially true in employment cases, in which a number of causes of action may be supported by the facts of the case.
6. Copy the other side. Provide a copy (or a redacted copy) of the brief to the other side(s). This is important, but often ignored. Many lawyers reflexively mark their briefs “confidential,” meaning that they do not want them shared with the other side. Note that all briefs, whether or not they are shared, are confidential within the meaning of Evid C §1119, i.e., they can’t be discovered or used in any noncriminal proceeding.
7. Get everyone to the table. Have all parties and decision makers, including insurance representatives or risk managers, in attendance at the mediation. It’s much easier to say no by telephone than in person. Not having the right people there is a major reason for failed mediations and may be read by the other side as disrespect and disinterest in working together to resolve the case.
8. Bring a draft agreement. Bring a draft settlement agreement to use as a checklist, a target, a metric of progress, and an aid in making the deal final. Better yet, consider exchanging draft settlement agreements, or working on an agreed draft text, in advance of the mediation hearing. This will facilitate and focus the settlement conversation.
9. Prepare your client. Describe the mediation process and the players to your client, including your client’s role in the process. Also plan strategy with your client. Remind your client that settlement is almost always a compromise; the deal has to be good for both sides or it won’t happen.
10. Be persistent. The mediator will certainly try to complete the process and close the deal within the scheduled event, but sometimes that doesn’t happen. Progress is almost always made, however, and it shouldn’t be allowed to go to waste. Continue the conversation with the mediator and/or directly with the other side.
Get more details on each of these steps in CEB’s Employment Damages and Remedies, chap 1. Mediation process and techniques are also covered in CEB’s California Civil Procedure Before Trial, chap 45. Family law attorneys should also check out CEB’s program Preparing a Family Law Case for Mediation, available On Demand.