Published : March 2016
By: Judge Lucy Chernow Brown (Ret.)
After twenty-four years on the Circuit bench, followed by one busy year as a mediator, I have learned much more than how to transfer my skills to fit my new role. I have come to realize that the attorneys most likely to reach a satisfactory resolution to their case prepare early and effectively for success at mediation. We all know that roughly 95% of our civil cases resolve before trial. Why not make a commitment to successful settlement at mediation, by planning early for success?
(1) Build your relationship with opposing counsel from the beginning of the case in a manner that creates trust and respect, and enhances your credibility. Do not create hassles over the small stuff. Let your opponent know you are a formidable yet reasonable adversary. Establish a record of being forthcoming by sharing the essential discovery, resisting the urge to jump into an endless cycle of unnecessary motion practice. Share the information that will convince your opponent that there is a rational basis for damage calculations from your client’s perspective. This will set the stage for a meaningful exchange of information as mediation actually approaches.
If appropriate for your particular case, consider information exchanges which, by agreement, are to be used only for mediation purposes. An Agreed Protective Order will help facilitate a meaningful settlement discussion.
(2) Prepare your mediation brief early enough to review it and give it some critical thought. Draft, edit, and redraft your analysis of the case. Frankly articulate each of the strengths as well as weaknesses of both your case and that of your opponent. Remember this is a confidential communication with your mediator, which forms the basis for you to confer, consult and strategize before the mediation session to plan the most effective mediation presentation on each important point. Do not pass up this opportunity to clarify the crucial issues in your case, as well as any potential obstacles which must be overcome to reach resolution.
Consider bifurcating your brief, such that the analysis described above is strictly confidential, but the factual scenario from your client’s perspective and your legal theories are shared with your opponent. Keep in mind that you are going to mediation to settle this case. This will also help create a positive atmosphere of collaboration to reach resolution. Of course, by the time you complete the brief, you should know your case so thoroughly that chances of surprises on the day of the mediation conference are minimized.
(3) Make sure to schedule a confidential telephone conference with your mediator after submitting your brief and any other important documents for the mediator to review. This presents an invaluable opportunity to collaborate with your mediator on how to use your most effective strategies. Your mediator can be an effective advocate for your position in caucus with the other side only if the mediator has a thorough understanding of your analysis of the case. It also gives you a chance to hear your mediator’s view of how the judge and jury will respond to your client and your case. If your mediator is a retired judge, get the full benefit of her/his judicial analysis and experience in observing jurors’ response to difficult cases like yours. Again, remember that your goal is to successfully resolve the case.
(4) Prepare your client early for the fact that the case is statistically unlikely to go to trial, that trial can truly be a “roll of the dice,” that most attorneys have won cases they “should have” lost and lost cases that seemed like sure wins. Help your client see the benefit of early effective planning to achieve a successful settlement. Help your client to trust the process and to be prepared to consider your opponent’s perspective of the case. While many clients often do not want to hear these things, your knowing when and how to start this discussion early will avoid the problem of unrealistic client expectations destroying chances for a successful resolution, avoiding the stress, risk and high costs of trial. Best of all for your client, maximizing chances for success at mediation creates certainty and closure in a confidential setting.
If you effectively plan for success at mediation, by spending the time to prepare before the mediation conference, chances are excellent that you will end the mediation, and the case, with success.
Judge Lucy Chernow Brown (Ret.) served 24 years as Circuit Judge presiding over thousands of civil cases of all types. Since her December 2014 retirement Judge Brown has been active mediating and arbitrating cases, and working as a Court appointed Special Master/ Special Magistrate. A Florida Supreme Court certified Civil Circuit Mediator, Judge Brown is a Neutral associated with JAMS, the international ADR provider. She may be reached at firstname.lastname@example.org or 561-329-1316.