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Making Your Best Case in Mediation

Joe Ramsey
Copyright © 2009
Published: Sacramento Lawyer (May/June 2009)

A primary mediation goal is to convince adverse parties that your case is strong and they would be well-advised to compromise sufficiently to resolve the dispute. The traditional mediation model affords two major opportunities to make your best case. One is the mediation brief, and the other is an early joint mediation session with all participants.

The Mediation Brief

The mediation brief is your first opportunity to make your best case, and this opportunity should not be wasted. Capable trial lawyers committed to a genuine effort to settle will present well-organized mediation briefs comparable to top-notch trial briefs. The briefs should contain detailed factual presentations with page and line references to depositions and other documents. The briefs should also include sophisticated legal analyses of any legal issues that need to be considered.

Full disclosure should be made in the brief. Counsel should assume the opposition is not fully aware of their positions, and that they will consider the brief. Opposing counsel will need to receive your brief in sufficient time to inform and advise their clients. Briefs should be exchanged well before the date set for the mediation session, especially in complex multi-party cases. Counsel for all sides certainly want all the information they can get about the other parties’ positions so they will have sufficient time to assess them and consider what recommendations to make to their clients. Remember, competent counsel will not act on new information until they assess it carefully, so new information presented late almost always defers reasonable decision-making.

Joint Mediation Session

The second opportunity to make your best case is in a joint mediation session. Based on all of my training from 1986 to the present, I strongly recommend that the mediation begin with a joint session among all the parties’ decision makers, counsel for all the parties, and the mediator. In that session, all counsel should set forth their strongest positions on all issues. Their presentations should be in the nature of an opening statement (non-argumentative) addressed to the mediator, not to another party or lawyer.

A joint session is important because it allows the parties to hear first-hand how their opponents view the dispute. One may reasonably assume that opposing counsel have advised their clients of the strengths and weaknesses of the case. However, honest perceptions of zealous advocates often differ drastically even when everyone is looking at the same evidence. Even if all clients have been fully advised, it is important that the parties hear the opposing views presented professionally by capable, well-prepared counsel. This will give the parties a new appreciation of the reality of litigation.

Another reason for a joint session is time and cost efficiency. Most mediators share some views with all parties. Obvious examples are views about risk, expense, delay, and stress. Sharing such thoughts with all parties together saves the time of repeating it in multiple private caucuses. Sharing the views together also underscores that all parties face similar decisions and share a common burden of dealing with the same hazards – even though the hazards may affect each party differently.

Setting forth your client’s position directly in a joint session affords you the opportunity to present your case precisely as you want it presented, not as the mediator sees it. All experienced mediators are careful listeners, but there is always risk that something will be lost when counsel present their positions to the mediator in private session and count on the mediator to convey the desired message to the other side. Counsel who make their own presentations in joint session reduce to zero the chance that something important will be lost in the most careful transmission of information from private sessions by the mediator.

The reason most often expressed to me for not proceeding with a joint session is that setting forth the position of each party will likely inflame the others, causing them to dig in rather than to consider reasonable compromise. In my experience, there is little merit to this objection. First, the mediator should take control and require a civil and non-inflammatory process. Second, volatility is part of the litigation process, and venting is not necessarily bad. Third, the parties will have no realistic option to boycott any other part of the litigation process and should be willing to attend the joint session as well.

Whenever I attend mediation training programs, there is strong agreement among all that the joint session should not be eliminated except in extreme and rare circumstances. I have come to believe that the only sound reason for clients not to attend an initial joint session is that doing so might impair their health. Sometimes even the relatively mild stress of a joint session might be harmful. I recommend starting with a joint session even if there already has been a mediation or MSC. At a minimum, it saves time to share perceptions of the parties concerning whatever has transpired since the previous session.

Having decided on a joint session, the lawyers should all be prepared to make the best case for their clients. Just as mediation briefs should have the quality of trial briefs, oral presentations at joint sessions should have the quality of opening statements at trial. It is not unusual for counsel to make detailed power point presentations. Whether to involve experts is a judgment call. Experts are usually helpful when they do participate and should be included whenever counsel feels they can be helpful. In the wide variety of civil disputes I have mediated, construction-defect litigation is the only type of litigation in which experts routinely participate in mediations.

It is more problematic whether to encourage one’s client to contribute actively in the joint session. Active participation offers a potential advantage but carries a potential risk best assessed on a case-by-case basis. Many capable lawyers prepare their clients and invite them to speak on one or more issues. A good presentation by the client will give the opposition decision-makers a glimpse of the client’s personality, and shows that the client is more invested in the process.

Conclusion

A thorough presentation in your brief and opening statement provides detail needed for thorough analyses by decision makers. Such presentations also send the message that counsel are well-prepared. By participating in a joint session early on, the parties become engaged in the process from the outset. If you make your best case with a quality brief and a persuasive opening statement, the stage has been set for follow-up on all issues in private sessions.

Joe Ramsey received his A.B. and L.L.B. degrees from Stanford University, and has 35 years of general and appellate civil litigation.  He has been mediating cases since 1986, and has engaged in ADR practice full time since 1997.  He may be reached at www.joeramseylaw.com

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