Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Circuit Judges, Marion County Circuit Court
A judicially hosted settlement conference is mediation with a judge. Normally, the same rules apply. The terms “settlement conference/judge” and “mediation/mediator” are used interchangeably in this article. Criminal cases aside, there are basically two types of mediations: money cases (the prayer seeks monetary compensation) and relationship cases (divorce, probate, employment, property line disputes, etc). JAMS (Judicial Arbitration and Mediation Services) defines mediation as “A process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.” In the context of the litigated case, this means that the neutral assists in the resolution of some or all of the issues in the parties’ case.
Golden Rules:
- Mediation should be voluntary (the concepts of “mandatory” and “mediation” are inconsistent).
- Mediation should be with a mediator or judge selected by the parties – the neutral that the parties believe will have the best chance at success.
- With rare exception (e.g. Child or Elder Abuse), mediations are confidential; the neutral receives ex parte information from each attorney (the mediation statement).
- The trial judge (or any neutral who might make a material ruling) should not act as mediator.
How does the practitioner best prepare for the mediation?
- What do I include in my mediation statement?
- Name of the case, the date and location of the mediation, who you represent and who will attend, the name of the assigned trial judge and any trial date.
- Give a brief statement of the facts, claims and law, and a history of negotiations, if any. What is the short version of the theory of your case? The opposing case?
- List the key issues to be resolved. Whether there are relationship issues.
- Has discovery been completed? Will there be any dispositive motions?
- Any problems you perceive in processing the case? For example, personality issues with counsel, sticky legal issues (drunk driver), anticipated evidentiary questions which might make a difference or differing factual versions of the case?
- The pleadings (maybe…?)
- Consider a pre-mediation conference with the mediator. (This is an ex-parte proceeding).
- Anything that might make a difference.
- What should I do in preparation for mediation?
- Study the facts and law.
- Make sure necessary parties will be present or obtain permission otherwise. And any helpful parties (i.e. – lienholders) are available by phone.
- Prepare and deliver your mediation statement at least two days before the session.
- Spend time with client and prepare them for the mediator and the process:
- Explain the process and the mediator and her role – include an expectation that the mediator may play devil’s advocate (don’t be tempted to think that the mediator is against you or supporting the other side).
- Discuss risks, ambiguities and costs of continuing litigation.
- Prepare the client for the tough questions which may be asked.
- Discuss the reasons why a bottom line or take it or leave it, is not something to be decided before the mediation. Try to focus on the future, not the past.
- Explain that you are not really talking to the mediator, but to the other side.
- Allow more time than you think. Be patient.
- Try to allow for a little trust in the process.
- Think “back and forth”.
- Try to listen to what the other side is saying.
- Think options.
- Their first offer may be quite different than the best offer received.
- At least one purpose is to find out the best offer of the other side.
- Bring your file.
- Does my client really need to be there in person?
- Plaintiff – YES. (We know about skype, it works for some things, but does not work for effective communication with a person you don’t know well).
- Defendant – Insured, no. If insurance representative, ask the Plaintiff’s counsel to stipulate, then maybe not a problem particularly if it is a representative that the mediator has dealt with before. On the other hand, why would an insurance representative not want to be there and get firsthand information especially when the Plaintiff will be saying why didn’t they care enough to even show up?
- How much should I let my client talk during mediation?
- For a Plaintiff, why would you want your client to be hidden or reclusive? Don’t you want your plaintiff/client to show that they can be a “star”? Besides, most of the value assessment from the carrier comes from the plaintiff herself. Don’t you want an “extra” assessment from your mediator to throw in the mix?
- The client needs to participate for their own reasons. They may feel a need to speak out. They may actually “adopt” this process as theirs (if they actively participate).
- What are some of the characteristics of the best mediation advocates?
- Good preparation & planning (actually devote time to this and time with your client). Knowledge of the subject matter (facts and law).
- Patience.
- Develop and consider options. Often this follows asking questions to get at the needs and reasons behind the opponent’s position. Ask yourself what the other person will think you are saying if you give a particular offer or demand. Is it what you want to say?
- Deal with your own weaknesses (as well as your strengths).
- Take the high ground. Treat the other person with respect, even as you argue with their position. In other words, “…be tough on issues, but treat people with respect and dignity”.
- Mistakes made by attorneys in mediation:
- Insufficient preparation including a helpful statement to the mediator.
- Insufficient preparation of clients.
- Failing to advise client of a weakness in the case.
J. Paul Getty, Founder of Getty Oil, said his father once told him, “You must never try to make all the money that’s in a deal. Let the other fellow make some money, too, because if you have a reputation for always making all of the money, you won’t have many deals.”