Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, expenses, and waste of time. –Abraham Lincoln
Lawyer Lincoln’s famous exhortation to us as his successors at the bar is frequently cited when referring to the benefits of mediation. Mediation in Indiana has been with us for more than three decades; no sensible observer can quarrel with its success. The obvious benefits include the settlement of thousands of cases and the savings of millions of dollars of client and taxpayer money and countless hours of court time. As a former general jurisdiction trial judge and a current mediator, I can personally attest to several instances where mediated settlements were far superior in terms of judicial and economic efficiency, financial savings to the parties, and a determinative outcome shaped and owned by the litigants than could have been achieved through continued litigation. Mediation’s successes and its passage into maturity in Indiana have illustrated certain general practice traits that inevitably help lead to a successful mediation session. I have identified five of these traits below:
Prepare a mediation statement. Rule 2.7(C) of Indiana’s Rules for Alternative Dispute Resolution allows each party to submit a confidential mediation statement to the mediator. It should not exceed ten pages; however, it can be supplemented with supporting evidence and exhibits. It has become increasingly common for parties to forego the submission of this statement. This is usually a mistake. The statement itself gives the mediator the necessary background to begin formulating thought about how to best guide the mediation to a successful conclusion.
Additionally, preparing the statement forces you to examine your case’s strengths and weaknesses, and will help you focus your presentation at the mediation session. This benefit will not only increase the likelihood of a successful mediation, but it will also be helpful with trial preparation in the event the case does not settle. In preparing the statement, enlist your client’s assistance. Again, as with focusing you, it also focuses and prepares the client for the mediation.
Prepare your client. While this may sound obvious, all too often we as lawyers become comfortable with a situation and forget that our clients have never had a similar experience. This lack of familiarity leads to fear and uncertainty. In turn, this will likely interfere with the prospect of a successful mediation. Prior to the mediation, take 30 minutes or so to describe the process in some detail—identify and provide the mediator’s background to your client, describe the opening meeting and separate caucuses, explain the purpose of mediation and how a settlement may be achieved and memorialized. In short, decrease the client’s fear of the unknown.
Do not be afraid to let your client speak. A client who has been property prepared is much more likely to participate in a constructive manner during the mediation. As lawyers representing clients, it is often our natural instinct to prevent or discourage our clients from stating their position unless they are actually testifying at trial. Lawyers feel this restrictive approach permits us to exercise control over the case and its ultimate presentation; oftentimes it is appropriate. However, as noted previously, a successful mediation presupposes that the parties will have ultimate ownership of the compromise and settlement. More often than not, this ownership will necessitate at least one of the parties having ‘said their piece.’ This opportunity to state their position can occur either during the opening session with everyone present or during the caucus with the mediator.
Like trials, mediations have a life all their own. Part of this life is the clients taking advantage of what may be a limited opportunity to state what is on their mind. It can have a healing effect that enables the client to move toward an appropriate compromise. Do not be afraid to allow this to happen; it is frequently a prerequisite to getting the case settled.
Never say never! Whether in preparations with your client, in your opening statement, or in private caucuses with the mediator, never say never. During a number of mediations, I have heard the lawyer say this or that will “never happen!” On a nearly equal number of occasions, the position that the lawyer said would never happen in fact materializes. Predicting the course of a mediation is like predicting life—it is an imperfect science at best. While you can see trends and may be able to divine where a settlement may end up, to take a position that uses the word ‘never’ may result in you having to eat the word and sacrifice credibility with your client, the mediator, and the other side. Perfectly good words like “unlikely” or “unforeseeable” are usually far better.
Listen. As lawyers we frequently become so focused on what we want to say and demonstrate to our audience, i.e., our clients, the other side, the mediator, the judge, the jury, that we neglect to listen. During mediation, parties or their attorneys will often send signals through their verbal communication that will help get the case settled. A good mediator will be alert to these signals—they often indicate where a party may wish to be in the final instance. Likewise, a good lawyer should be attuned to what is said by the other side, the mediator, and by his client. This will be invaluable as the lawyer guides the matter toward a resolution that is in the client’s interests.
While this list makes no claim at being all-inclusive, the likelihood of a successful mediation decreases significantly where the lawyer or client is unprepared, where the lawyer deprives the client of an opportunity to “own” the compromise, where the lawyer takes untenable or unsustainable positions, or where the lawyer fails to listen attentively. Finally, as I expressed previously, each mediation takes on a life all its own. As in life, the lawyer who is willing to be flexible and creative will be successful, and the lawyer who hews unreasonably to a preset agenda will be less so.
James R Williams is a partner at DeFur Voran. He is a certified civil mediator and is listed as a private judge by the Division of State Court Administration. He served as judge of Union Circuit Court from 1998 to 2004 and continues to serve as senior judge.