With empirical studies showing that 90-95% of all cases (including environmental litigation) settle prior to trial, it is baffling how little preparation goes into preparing for mediation. Mediation has proven itself a resilient mechanism to resolve legal conflicts. Many courts require it. As environmental trial lawyers, we spend an enormous amount of time with jury consultants ensuring that we know as much as we can about potential jurors. Yet we fall short of the mark when it comes to mediation preparation. Here are five tips to help you prior to and during environmental mediation:
- The Mediator Selected Must Fit Your Case: In most situations, the parties confer in order to reach agreement on a mediator. First, figure out what type of mediator personality and traits will best be able to help the parties “get to yes.” Do you need one with apparent authority, such as a retired judge, to add credibility to the mediator’s settlement recommendations? Do you need a “head-knocker” because the principals on both sides have been unreasonable in prior settlement discussions? Do you want a mediator who has a technical background so that most of your time is not spent “teaching environmental science?” Research, research, research. Check references of different mediators from as many angles as possible. Then be prepared to offer as many as three mediator choices to opposing counsel. Don’t start this process the week before a mediator must be chosen.
- Prepare a Succinct Mediation Brief: The word “succinct” is missing from the vernacular of most attorneys. Make sure you understand the mediation rules concerning the length of briefs, and then try to state the facts, tell your story, and explain the law in as few words as possible. If you want the mediator to never read your brief, just send it to the mediator shortly before the mediation. Don’t concern yourself that the opposing party will “see your arguments” if you serve your brief early…if you have conducted discovery correctly, the opposing party already knows your arguments, and you are probably waiting for the court to rule on pending summary judgment motions.
- Prepare Your Client: Attorneys should spend time with their clients evaluating a variety of options to place in the settlement toolbox. Creativity is the key to “getting to yes.” Determine what motivates the opposition. What does the opposing party really want, and what might interest the opposing party? Can you combine a series of incentives as part of a settlement so that both sides can claim a win (or at least not a loss)? The client should be instructed to leave his or her emotions at home…and so should you. The risks and costs of litigating to judgment, and through appeals, should be discussed with the client long before the mediation. The client should expect that a successful mediation means that both parties are dissatisfied to some extent with the result.
- Mediation is About Trying to Resolve the Case; It is Not a Time to Try the Case: Why is it that attorneys attempting to resolve cases go out of their way to tell the opposing party how awful they are, and how terrible a case they have? This does not advance the parties toward settlement. For this reason, consider dispensing with opening statements in the presence of the opposing party. Mediation can be and should be an exchange of positions and explanations, with utmost civility, in order to achieve a resolution. Smile. Be pleasant. Most importantly, be patient and listen carefully. You do not need to prove to your client how tough you are during mediation. In fact, it may be that just the opposite leads to a settlement. As Winston Churchill said: “When you have to kill a man, it costs nothing to be polite.”
- Have Authority to Settle: There is no quicker way to end all chances of settlement than to show up for mediation without authority. The client should be present. And as trial counsel, you should advise your client whether the right client representative is there. If limited settlement authority is conferred on the client representative, then the ultimate authority must be a phone call away. No one likes to negotiate with someone who cannot make the final decision. During mediation, it is critical to ensure that your offer is accurately transmitted by the mediator: ask the mediator to repeat the offer to you. And for the trial lawyers who believe that they must be present with their clients at all times, here is a news flash: it is fine for the principals on opposing sides to meet privately to work out a solution. After all, they know what is motivating them, and it is their money. Put your ego aside and let the client make the decisions. If you did your job as advisor and prepared the client for the mediation, the client will do just fine.
Kim Burke has thirty years of experience as an environmental trial lawyer. In addition to being recognized by Best Lawyers in America for the last 20 years, including 2010 Environmental Lawyer of the Year for Cincinnati, and by Chambers and Partners as a Leading Individual, Mr. Burke serves as a mediator during the annual mediation week at the pleasure of the United States District Court for the Southern District of Ohio.
For more information on environmental mediation, please contact Kim Burke or any member of Taft’s environmental practice group.