One of the advantages that I think I have as both a litigator and a mediator is that I get to use the knowledge that I have gained in one capacity to make me better at the other.
For example, as a mediator, I have seen counsel repeatedly make the same errors, often resulting in a mediation failing or at least making the task of achieving a settlement more difficult, time consuming, and expensive for all concerned. I try to be mindful of these things when acting as counsel on a mediation. In this post, in no particular order, here are seven major mistakes that I see all too often.
1. Failing to Put in Sufficient Thought and Effort into a Mediation Brief
All too often, I see mediation briefs that are little more than a reiteration of the party’s pleading. There may be one or two documents included as an afterthought. Presumably, the lawyer’s idea is to actually prepare for the mediation the night before, rather than a week before, when the mediation brief is prepared. This is completely unhelpful. By the time the case has reached mediation, at the very least, there should be an exchange of productions, if not completed examinations, for discovery. Thoughtful preparation is important. As in most cases, the more effort one puts in, the more likely something productive will emerge by the end of the process.
2. Not Preparing One’s Own Client for What to Expect from the Other Side
Most clients have great difficulty appreciating that theirs is not the only side of the story. This often can lead to extreme dismay and discouragement early in the mediation process. The client does not have to agree that their case has holes, but the client should certainly be aware of what is being said by the opposing side before the mediation starts.
3. Making Inflammatory Remarks
In mediations that I conduct, I try to discourage counsel from making opening statements or permitting their clients to do so. Nevertheless, in some cases I am overruled. Counsel, or the client, then proceeds to open the mediation by saying something that angers the other side to the extent that their cause immediately attracts two strikes against it. If your client wishes to vent, please do so in private, with me. If the client insists that the opposing side hear what they have to say, let me know in advance so that I can tell opposing counsel, who can then prepare their client.
4. Fighting Battles on Unwinnable Points
A wise senior counsel once said to me, “why fight a battle you can’t win?” There are those counsel who believe that the more arguments one makes, the more likely it is that one of them will stick. That is simply not true. Poor arguments are dismissed immediately and the lack of credibility attracted by the making of unwinnable arguments usually taints the valid arguments.
5. Being Unreasonably Tough, Thinking that there will be Time to Settle Later
The truth is that while there will be plenty of time after an unsuccessful mediation in which a settlement might take place, it is highly unlikely that there will be a better opportunity to settle. Furthermore, the client will have to spend a lot more money between the date of the mediation and the date that another settlement opportunity arises, which will have to be recouped in order to have made the delay worthwhile.
6. Making Offers that Both Counsel and His or Her Client Know to be Unrealistic
Making an obviously unrealistic offer does not communicate the idea that you are hard-nosed. Nor does it start the bargaining at a point that is high or low enough that the ultimate agreement, if there is one, will be based on a better number than it would have been if your initial offer been realistic. All it does mean is that you either don’t know what you are doing or are not serious about resolving the case. Stop wasting everyone’s time, and be realistic. You can stick to your guns if you like, but if you do make a ridiculous offer, all you will attract is an equally ridiculous counteroffer.
7. Failing to Educate Your Client About the Costs of Litigation Going Forward
When faced with obstinacy, I usually find it helpful to have a discussion with a lawyer and the client about anticipated costs going forward. I am often surprised that the numbers revealed are numbers the client had never been told. This is an error. Just as the client is entitled to your advice on the probabilities of success or failure in the case, they are entitled to a budget for the rest of the case, including trial, so that the client can factor this into his or her thinking about offers to be made or offers received.