How To Help Your Mediator

I hear a lot of lawyers complain that it is difficult to find a good mediator. It is true that, like being a successful trial lawyer, a great writer, or a well-respected judge, being a truly effective mediator takes practice and talent. However, even the best mediator is only as good as the parties prepare him or her to be.

Judges expect most if not all civil cases with a reasonable likelihood of going to trial to be mediated. As a result, we in civil practice typically attend many more mediations than trials. Too often, however, for those of us who focus on the defense of civil cases, the temptation is to treat the mediation process in a pro form fashion. We provide the mediator with a basic mediation statement that is heavy on case summary and light on advocacy, and just rely on the mediator to recognize how unreasonable the other side is.

However, cases typically do not get resolved because a mediator tells a party or an attorney that he or she is being unreasonable. Cases get resolved because a mediator tells a party or an attorney that he or she can lose. A prepared mediator can tell a party, "There is a substantial risk that you will lose this case, and here is why." The only way the mediator will know the reasons why the other side can lose is if we tell them those reasons. So, here are a few suggestions for helping your mediator help you:

1. Identify your strong points clearly and unequivocally at or near the start of your confidential mediation statement. The ideal mediation statement should begin along these lines: "We represent the Defendants, and we expect judgment in our favor for the following three reasons:

a. The most credible evidence demonstrates that Defendant #1 followed the
standard of care in connection with the services provided to Plaintiff;

b. The weight of the scientific evidence demonstrates that Plaintiff's
injury was not proximately related to any of the services provided
by Defendant #1; and

c. Defendant #2 is not vicariously liable for Defendant #1's conduct as
a matter of law."

This sort of structure can then form the outline for marshaling the facts and evidence in a way that shows the mediator why your client may very well win the case.

2. Show the mediator actual evidence. We are often reluctant to deliver a confidential mediation statement that includes extensive exhibits, or to bring the entire file to mediation. However, when the parties make competing representations about "the facts" to the mediator without reference to the available evidence, the mediator doesn't know who to believe. If we have provided or have available the actual key testimony or evidence, the mediator can make an independent determination of the likely impact of that evidence.

3. Don't hide the bad facts. To gain the credibility of the mediator, we have to acknowledge bad facts, preferably in the mediation statement. To properly equip the mediator to help us, we have to explain how we plan to deal with those facts.

4. Be prepared. Mediators are likely to have questions about witness credibility, how various items of evidence get admitted, and how much the ongoing litigation and trial will cost. Being ready with answers to such questions will demonstrate to the mediator that you have thought through the case, taken seriously the possibility of trial, and begun to think about how the case will be presented to a jury. This in turn will equip the mediator to communicate to the other parties that you are genuinely prepared to take the case to trial. That internalization tends to make parties more realistic about risk and value.

These suggestions are designed to prepare the mediator to focus the other side on their real, non-abstract risks. A properly prepared mediator can bring your advocacy into caucus with the other parties. An ill-equipped mediator must fall back on focusing in a general fashion on the costs of litigation and the unpredictable jury process. The responsibility of preparing the mediator is ours.