Published: April 2019
By: Kenneth D. Stern, Circuit Judge (Ret.)
Often, otherwise competent attorneys fail to create success for their clients in mediation, because they do not take the process seriously enough to prepare for mediation as thoroughly as they prepare for trial. Why would any competent attorney, who is dedicated to satisfying a lawyer’s fiduciary obligations to a client, nonetheless fail to satisfy those obligations where mediation is concerned?
For more than one reason. First, many attorneys fail to appreciate how much can be accomplished at a mediation. When properly prepared, a skillful trial lawyer can tactfully and credibly point out the strengths of his or her own case or defense, and stress the uncertainty and risk the opposing party faces at trial. Moreover, if the joint session and the caucuses reveal the existence of adverse testimony or evidence supporting the other side, the attorney can stress this to his or her own client, without appearing to be weak.
Second, the lawyer must prepare the client for mediation. This involves more than merely explaining that the parties are required to attend a meeting to discuss settlement. The lawyer should schedule an in-office status conference with the client, to review the evidence and the chances of winning and the risks of losing. The client must be made to appreciate the variables in a trial, such as how the witnesses will appear to the jury, whether they will be believed, whether there are other witnesses, documents or other evidence to corroborate each witness’s testimony, etc. Thus, if the lawyer suggests settling the case during the mediation, the client will not think that the attorney is merely telling the client to throw in the towel.
Third, the attorney must be certain that the evidence s/he has obtained from the other side is genuine, and never settle for hard copies of documents. One must always insist on electronically-stored information (ESI), on CDs, for example, and seek the advice of a computer-savvy expert to assist in framing discovery demands, to ensure that the evidence received will contain “metadata” which will enable the expert to ascertain, for example, if any documents were altered since first created, or whether a document was created on the date shown on the document, or whether it is newly-fabricated to appear to “prove” a statement or meeting which did not occur on the early purported date, etc. Always remember that one has a high risk of committing malpractice if one fails to discern the fraudulent nature of altered or fabricated documents. The attorney should retain an expert who can competently help to frame document discovery requests in ways that will produce evidence capable of being examined.
Finally, the attorney must establish rapport with the Mediator as far in advance of the mediation as possible, and solicit his or her assistance with problems one can anticipate. For example, if the client is suspicious of the mediation process and likely to resist settlement even where it is clearly advisable, the attorney should tell the Mediator, and discuss the situation. The skillful Mediator will be sure to make comments at the opening or joint session, and/or during caucus, stressing the importance of making the best settlement possible at mediation in order to avoid the risks and uncertainty of trial, and assuring both clients that if their attorneys discuss the potential for settlement, this does not mean that they are weak. Sometimes only the “authority figure” can set the stage for settlement. The attorney may “enlist” the Mediator to avert potential problems as well as to deal with existing ones. The Mediator will be equally helpful to the other side, without revealing to either attorney what the opposing counsel has confided to the Mediator.
The bottom line is that mediation is too crucial a tool for the trial attorney to ignore. Make the most of it.
For additional ADR resources and tips go to http://www.palmbeachbar.org/adr.
Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family and Appellate cases. He also is an Arbitrator (AAA approved), a Special Master helping to move cases toward resolution by hearing many motions which were languishing on crowded court dockets, and an Umpire in disputes involving homeowners’ insurance claims in damage cases. Judge Stern may be reached at firstname.lastname@example.org or 561-901-4968.
For a more thorough discussion of conducting eDiscovery and using an expert to help you ensure that you are fulfilling your obligations as an attorney, order a CD of the ADR Committee’s session at this year’s recent Bench-Bar Conference on February 22.
See the ADR Corner column, Recruiting the Mediator as Your Ally, in the April 2017 issue of the Bar Bulletin.