MEDIATION ADVOCACY THE ART OF PERSUASION
PREPARATION- THINKING ABOUT THE MEDIATION
When viewing the entire landscape of dispute resolution, it is clear that in today's world mediation is by far the most popular. Every form of dispute resolution involves advocacy.
Be perfectly clear, however, that mediation requires a different kind of advocacy. It is not an adversarial setting. It is ultimately about persuasion. The mediation process itself is about compromise and crafting solutions. It is about two opponents building a bridge together, which will allow each of them to close an unpleasant chapter in their clients’ lives.
The parties are litigants and they have begun the journey to the court house, which some people today view as a pathological experience. This excursion will take many years and it will cost a lot of money and the results are unpredictable. Mediation is a process which seeks to truncate considerably this excruciating experience. All of your preparation for the mediation session must keep this in mind.
THE MEDIATION MEMO
This is a very important document. It is the first thing your opponent and the client will read; it is the first thing the mediator will read. You only get “one chance to make a first impression”. First impressions are lasting.
It is best when this document is concise. It must introduce the parties, the issues, the strengths and weaknesses of those issues and finally it must lay out the proof. A lawsuit is not a scientific search for the truth; it is the resolution of a dispute. Sometimes it becomes a search for proof, as in who has the best proof.
The following suggested layout is how you should plan your mediation memo.
Use lots of headings and use numbered paragraphs. Be concise and do not repeat your arguments. Do not inundate the mediator with every piece of paper that you have accumulated. If you refer to or quote from an expert's report, that document should be included as an exhibit. Obviously you must be persuasive; do not be repetitive. Make your best arguments first.
Deal with the issues; deal with the strengths of your case, but even more importantly deal with the weaknesses. Demonstrate how you intend to prove your case. This is the best form of persuasion; it is simple logic. Craft your memo in such a way that the mediator can use it as a roadmap through the dispute. The concept is similar to drafting a Factum for the Court of Appeal.
In personal injury cases, I have noticed some trends that are occurring, particularly amongst defendants. In the interests of time, some defence counsel will merely cut and paste from their discovery reporting letter to their client; or even worse they will have a clerk do that. Unless such a document is carefully edited, arguments supporting the plaintiff's case or weaknesses in the defendant's case are inadvertently mentioned. This is not good advocacy. There are no shortcuts when it comes to preparation. You must take the time to prepare the memo carefully.
I have also noted that some defence counsel wait until they get the plaintiff’s mediation memo before they prepare their own. This results in the late delivery of their mediation memo. This is not good. Most mediators do not have the luxury of preparing for the mediation a week in advance, most preparation is completed a day or two before the mediation. Sometimes the mediator is out of town or away from his office and doesn't get the material until the 11th hour. Delivering memos at the last minute is not conducive to careful preparation.
If as a defendant you do not know the file well enough to prepare a mediation memo before you see the plaintiff's document, then you are probably not ready for mediation. You do not know your own file well enough. The single most common reason why mediations fail is because someone is not prepared, either counsel or the mediator. Get your memo in on time, a minimum of seven days before the start of the mediation. In the event that either party is taken by surprise by anything contained in his or her opponent’s mediation memo the simplest way to deal with that is a reply document.
If there are any glaring weaknesses in your case, you must deal with them in the memo. Your opponent is not going to forget about them. Ignoring them or glossing over them will only serve to enhance their importance in your opponents mind.
I have mixed feelings about mentioning damage figures in your memo. In the final analysis it comes down to the degree of confidence you have in your assessment. If you do not have a comfort level with your assessment, it is better not to mention figures. I don't think there's anything wrong with including a list of disbursements in the plaintiff's mediation memo. As a matter of fact, I think it helps a defendant budget for the mediation session.
THE OPENING STATEMENT
If the underlying concept of mediation is compromise, the prime purpose of the opening statement is to persuade the opposing litigant to buy into your theory of the case. Lawyers are trained and are very good at making opening statements in an adversarial context. Mediation takes place in a very different kind of environment. Mediation is conducted in a very informal setting; most mediators will lay the groundwork so that the parties can use first names. You are about to endeavor to resolve a legal dispute which could take days or weeks, even months of court time, in a matter of hours. This requires the spirit of cooperation and compromise.
You should not do anything in your opening statement to make the opposing litigant feel uncomfortable. I consider it good practice for counsel to reintroduce themselves and thank everyone for coming. When counsel begin by announcing that their opening remarks are going to be addressed to the opposing litigant, it makes that individual feel centered out and uncomfortable. Your objective is to humanize yourself and try to establish some kind of rapport with the opposing decision-maker. Expressions that involve the spirit of cooperation, combined with the recognition that settlement benefits everyone are always good. Describing your role at the session and that of your client combined with the comment that you are both attending in good faith with a view to resolving the case, is an important ingredient in an opening statement. You can even give examples of how settlement is in everyone's best interest in terms of saving time and money and stress.
If there are strong feelings or emotional issues on one or both sides of the dispute, acknowledge that, but deal with it sincerely. Never make a statement to the effect that you understand the other side's feelings. This has the opposite effect of establishing rapport. When someone has lost a loved one, you cannot possibly understand how they feel. You can certainly sympathize and you can even use the technique of making some kind of an apology if you represent a defendant. In Ontario now we have legislation under the Evidence Act that permits apologies. This strategy must be carried out with the utmost sincerity, otherwise it will backfire. Sometimes in medical malpractice cases the apology is the only thing the plaintiff has come for; it must be handled appropriately. A great deal of time and effort goes into this kind of an opening statement. Sometimes this kind of an opening statement is best rehearsed with your own client. If you are able to establish some level of rapport with the opposing litigant, they are more likely to listen carefully to your arguments and accept them.
In every lawsuit there are hot buttons. Don't press any during the opening statement. Never do anything or make any kind of comment that will provoke the other side. If you do anything during the opening statement that upsets the other disputant, you will never convince them to listen to you. Remember that you have come to the mediation in the spirit of compromise and with the good faith objective in resolving the dispute. There will be contentious issues; you must deal with these in a logical dispassionate way. The opening statement is not the place for rhetoric or flights of oratorical fireworks. This is not an adversarial context.
Obviously you must address the issues in the case; you must be prepared to discuss the strengths of your own case and how you intend to satisfy the evidentiary burden in order to prove your theories. If there are weaknesses in your case, either legal or factual, you must admit to them, you must acknowledge them; and you must deal with them. It is absolutely imperative that you demonstrate to the opposing litigant that you have the ability, the proof and whatever is required to satisfy the evidentiary burden. A failure to acknowledge the weaknesses in your own case merely serves to strengthen your opponent's faith in the strength of his or her own case.
Never personalize the issues in dispute, especially the contentious ones. Always keep an open mind and be prepared to stress that mediation is a joint effort on the part of all of the litigants to resolve the problem.
Naturally, it is always more effective if you speak without notes; understandably sometimes they are required. Another goal during the joint session is to establish your own credibility. After demonstrating the strengths of your own case, dealing with weaknesses in your opponent's position, it is always good to acknowledge that you have come to listen and that you can be persuaded by reason and logic.
CLIENT PARTICIPATION IN THE OPENING
This is a topic that requires much thought and careful analysis. If you are plaintiff's counsel and you have a client who is a good witness, you should permit that person to say a few words. In personal injury cases the opposing litigant is there to make a decision as to whether or not the plaintiff will impress the Trier of fact. If the plaintiff is not a good witness, and you have formed the opinion that no matter how much preparation you undertake this situation cannot be altered, then the plaintiff should remain silent.
The very same considerations apply to a defendant. In personal injury cases sometimes an experienced claims person can speak for two or three minutes and it can have a significant impact. The litigants themselves have a preconceived notion that the lawyers are hired guns. They are there with a view to winning. The claims person is not a lawyer; a few carefully chosen words can ultimately tip the scale in favor of resolution. I encourage client participation in the opening session.
DEALING WITH DAMAGES
As a general rule it is not good practice to mention numbers during your opening, unless you have outlined them in your memo. There are some important exceptions. If you have read something in your opponent's mediation memo that has caused you to rethink damages you should mention it and acknowledge it. This will serve to enhance your credibility. It is also possible that you have read something that made you realize that you must compromise significantly your opening position; that should be mentioned.
If circumstances have changed, or there is some new slant to the evidence, that should be dealt with in the opening as well. In all other circumstances, it is best to leave the question of the quantum of damages until you begin caucusing.
THE CAUCUSING SESSION
When the caucusing session begins, do not be afraid to use the mediator as a sounding board. The mediator is there to assist counsel as to whether or not their theories or negotiating strategies are realistic. Regardless of what the mediator says or suggests, your own level of confidence with the case, or your strategy, will determine your course of action.
We have developed a practice in Ontario of using the mediator like an ambassador, delivering messages between the two camps. Sometimes when the issues are extremely contentious this method does not work. Counsel must deal with each other. Counsel must deliver their own arguments and be prepared to defend them. A good mediator will know when this must take place and will simply tell counsel that these issues must be confronted. Simply put, your opponent must get an appreciation of how firmly entrenched you are in your view of the case. Never be concerned when a mediator suggests that a joint session of all the parties be reconvened. You must always be prepared to defend your position; that's what will happen if you end up at the court house.
Most mediators use a standard caucusing rule; anything discussed in caucus can be repeated to the joint session unless counsel state otherwise. Always be aware of this rule and never hesitate to tell the mediator if you want certain information kept confidential. If the mediation is taking place temporally close to a pending trial, make sure that neither you nor the mediator compromises your trial strategy.
It is very important that prior to any offers being presented, counsel advise the mediator what settlement discussions have preceded the mediation session. There is nothing worse than walking into the defendant’s room to present an offer to settle, and then to be greeted with the reality that the proposal is three times a recent offer in writing. That mediation will become derailed instantly; or the mediator will spend the next hour or two simply enabling the parties to start over.
It is not my intention to discuss negotiating strategies in these remarks. In this area most mediators can be very helpful. I am, however, a proponent of principled negotiation. This simply means supporting your negotiating positions with sound arguments. What really happens in most personal injury cases is that the parties tire of repeating these arguments; ultimately they end up negotiating using global numbers. This is much more acceptable when the foundation for these negotiations is based on logic.
The mediation process is a good one. It works in the Province of Ontario and every day there are more mediations taking place then there are civil lawsuits in court rooms. Unless and until they change the system, lawyers who are prepared to try cases are the ones who will be most successful at mediation. Before you can become a peacemaker you must know how to wage war.