THE UNNAMED ASSOCIATE SPEAKS #4: Behind the Scenes at a Recent Mediation

by the Unnamed Associate

Yesterday, I attended my first mediation, and it was a very educational experience. You'd think that lawyers, as mature and highly educated professionals, would consider all kinds of objective and reasonable criteria for picking a mediator.

You'd be wrong.

For the lay parties involved, mediation is a chance to settle the dispute without having to go through the expense and rigors of an actual trial. Both sides get to feel like they are laying out their case before an impartial party (the mediator), who will then be moved to recognize their plight and put pressure on the other side to cough up what the claim is really worth. Lawyers know that mediators are suppose to get the case settled, regardless of merit, because merit is not the only consideration when going to trial – risk of exposure probably settles more bogus claims than the number of meritorious claims which really win a reasonable verdict at trial.

For the lawyers involved, mediation is a chance to spend a day outside the office, in the company of his client, reading magazines and stuffing himself on the gratis junk food. Of course, he is coming to the mediation table making a good faith effort to settle the case; but let's face it – the mediation could probably be finished in a few hours if the parties gave the attorneys their final numbers and stayed home.

The truth is, I have learned that lawyers pick their mediator based on who gives away the best goodies. The mediation I attended yesterday was a pretty swank affair: Once the parties gathered together and each party gave his opening statement, each party was then escorted to his own private room. The rooms were outfitted with a basket of snacks, including a selection of cookies, crackers, and dried fruit; an endless supply of various soft drinks, coffee, iced tea, and bottled water; and two big jars of M&M's – regular and peanut. There was a handy pile of recent magazines available, ensuring that the parties had a way to entertain themselves besides focusing on the weaknesses of their opponents' case. The mediation company provides lunch, catered from a popular local sandwich & soup place, delivered to each party's private purgatory. And best of all, the table has a basket of goodies on it, all with the logo of the mediation service. Our basket included rubber bouncing balls which light up and make laser gun noises when they bounce; the expected be-logoed pens and pencils and blank memo pads; and little tins of Altoids-like mints, only with the mediator's logo emblazoned on one side of the tin, and the word "Agreemints" on the other.

As much as I wanted to be appalled by the fact that lawyers recommended different mediators based on their different goody offerings, I have to admit that I'm persuaded to use these mediators again merely because I appreciate a good pun.

In all seriousness, the mediation was an interesting exercise in client management. The client has the final say over whether or not to settle, of course, so it is up to the attorney to use his reasoning and powers of prediction ( i.e., his experience and knowledge of the law, the courts, juries, and the jurisdiction) to put a value on the case and try to lead the client to an understanding of what his case is worth. Some of the language passing between my boss and the client, in between visits from the mediator, was shocking to me. It was very "us v. them" language, and the terminology was right out of Sun Tzu. "This is all I'm going to give," declared the client at one point (he gave more later on). "If they want more than that, they'll have to come and take it," agreed my boss. The reasoning was that surely a jury could not possibly award more than what we were offering; and if they did, they did – but we weren't going to hand it over. I was both impressed and dismayed. Dismayed because juries do some unpredictable things sometimes, as I found out at my first trial last week, where everyone – judge, plaintiffs, and defendants, hell, even the bailiff – were surprised by the trial's outcome. Impressed because I had been told all along that This Is a Firm Where We Are Not Afraid To Litigate, and here is another example. (I hadn't seen a lot of trials going on since I've been here, but lately there has been a bundle of them, all at once; and the rest of the spring and all of the summer sees a full trial calendar here at the office. Of course every lawyer knows that the majority of all cases settle, but there are a lot which are far from a sure thing. Our clients, apparently, don't mind risk-taking, which is great if you want trial experience.)

My boss and our client managed to work their way through both jars of M&M's before the mediation concluded – with all parties reaching an "agreemint."

About the Author The Unnamed Associate is the pseudonym of a first-year litigation associate who works at a U.S. law firm. For more information, see her collected posts or Evan Schaeffer's introduction.

Comments

[Ted]

Just showing up with a number doesn't even require a few hours, just a piece of software and two computers with an Internet connection.

Many clients don't see the weaknesses in their own case until a mediator points it out, or they see for the first time the evidence that is arrayed against them. A good mediator can help change a number.

[Me]

Hey - as an in-house counsel who gets my behind dragged all over the tri-state area for mediations (who on earth decided I'd be happier and more ready to pay money if I had to get up at 5:00 am to drive to Kansas City or St. Louis just to listen to plaintiff's counsel put on an unimpressive dog and pony show?), I would officially like to know who has the goody baskets in Missouri. My mediations all have spartan accomodations with the thermostat turned down to fifty degrees in some bizarre attempt to starve/freeze us into submission. And coming from a criminal law background (prosecution), I'd be much happier to give the bottom line and stay the heck home, but nobody will LET me.

As far as the theories involved, it's best from my employer's point of view to figure out honestly what the case is likely to go for and shoot for that. While juries are unpredictable, and will sometimes bite you in the behind, there does come a point where if an overtly irrational sum of money needs to be paid, it's better coming from them than me.

[Me]

and if in-house adjusters - particularly those who are also attorneys - are not cognizant of the flaws in their case well prior to mediation, they should be looking for new employment. I can understand laypeople being ignorant, though I wish their attorneys would exercise a tad more client control, but professionals should never have that issue.

[U.A.]

This mediation was downtown St. Louis and exceedingly comfortable. And the mediator we had is, by reputation, one of the absolute best. He is a very well-respected "old gentleman" attorney. He did tell us that some places do try little psychological tricks like heat/cold or food deprivation to get people to cave, but I didn't believe him. I suppose if that happened to me once, I would prepare in the future by bringing enough food & drink for me and my client, reading materials, and wearing layers. I'm stubborn enough that I would see such tactics as a challenge to be overcome.

Unless, of course, I thought that my client was being unreasonable. Then maybe I'd keep the snacks to myself.

[Rufus]

No one picks mediators by their goodies, but if you settle case at JAMS In San Francisco you get a "resolution" pen. But I digress. The client control issue is any interesting one as I am in an inhouse position similar to the anonymous "Me," above. If counsel tried to manage me at a mediation I'd tell him to go sit in the corner and shut the hell up. In fact, I did once. Somewhere in the southern midwest, and that gy will never do work for me again. I never, never tell counsel what the number is, nor do I let them say anything to the mediator unless I've discussed with them in private excatly what they're going to say. All of that said, mediations where some parties are completely ignorant of the litigation process are a nightmare because the lawyer really does have to mage the client, and a lot of them either can' or won't.

Anyway, a real high stakes mediation where all sides are represented by skilled counsel and all the clients are sophisticated adjusters or inhouse counsel is just about the most fun you can have. I love waiting for the red eye at LAX or SFO after just having worked a long day to get a case settled. It's a huge high, even without goodies.

[me]

I do it a bit differently - I hire outside counsel I know can value cases, and I do share the numbers, then we can double-team the mediator. If I think it will be effective, though, I tell counsel to let me play the stubborn/intransigent adjuster in a sort of good cop/bad cop routine. I then sit back and let them "talk" me into my own number. That's always fun.

[mythago]

The truth is, I have learned that lawyers pick their mediator based on who gives away the best goodies.

Wrong. That's how we pick court-reporting firms.

[D-Day]

mythago beat me to it on the court-reporter goodies. The absolute worst goody experience happened to me at a videoconference/videotape deposition recently - the table was groaning under all of the snack bowls -- candies, fresh-baked cookies, soft drinks, fruits and nuts -- and everyone just sat there staring at the bowls for four hours because no one wanted to be the one to reach for the food on video.

[The Next Belli]

Mediations do work, young Jedi Associate. Pick a mediator who isn't a shil for either side. Wait until halfway thru the lit process to mediate.

Make mediation mandatory in order to get to trial, and you will be talking REAL tort reform.