Published: November 2019
By: Hunter Marckwald
A significant and often overlooked benefit of mediation is the broad range of possible solutions available. While most mediations are viewed as a matter of dollars and cents, in certain disputes, creativity and an effectively structured process can increase the likelihood of a resolution. Unfortunately, parties often miss potential “win-win” solutions and focus only on resolutions based upon possible trial outcomes. The following are tips for each stage of the process to unlock these often-missed opportunities.
Before the mediation, counsel and their clients should evaluate the risks and costs of possible trial outcomes. Next, identify and evaluate alternative solutions by asking and answering the following questions: (1) Is there is a desire for an ongoing business relationship? (2) If so, how can the existing relationship be altered to avoid similar disputes in the future? (3) Other than what they may get at trial, what else would either party want or be willing to provide in a negotiated settlement? (4) Are there items that one party wants that may be of greater value to them than the cost to the other party? (5) Are there other disputes between the parties that can be resolved in the mediation? Answer these questions to develop a list of alternative solutions. Client participation in this process is essential.
Next, prepare a mediation brief and consider sharing it with the other party. Include, at a minimum, your statement of the case, potential trial outcomes, possible alternative solutions you developed from the questions above, and a list of issues that need to be resolved at mediation. It is especially helpful to indicate which key facts are agreed and which remain in dispute, your assessment of damages as supported by the evidence, and how damages should be calculated. Finally, schedule a confidential pre-mediation conference with the mediator.
Your opening statement should be candid but respectful, and should not only explain how you view the case but also how you see it being resolved. Identify what your client will need in any negotiated agreement. Discuss your alternative solutions and how their inclusion in a settlement would benefit the parties. Actively listen to the other party’s opening as it may raise other possible solutions you have not considered. Observe body language and facial cues and note any items that appear particularly valuable or important to a party in the context of a settlement.
Once the parties separate, let the mediator help you achieve the desired outcome. There is little value in paying a third party to simply run offers between the parties. Work with the mediator and your client to determine if additional information is required in order to craft a meaningful offer. If so, use the mediator to obtain this information before making any proposal.
Once you have the information you need, begin preparing your offer. Refer to your list of alternative options to see whether one or more can address any of the needs of the other party and build your offer accordingly. Pay particular attention to the order in which you present each aspect of the offer. Start with items that address the needs of the other party. This allows them to see value in your proposal and may help avoid an adverse reaction to items addressing your client’s particular needs. When preparing the mediator to convey an offer, proper communication is key. Ensure he or she fully understands the offer before presenting it to the other party. This means understanding each element of the offer, why it is included, and why it makes sense. Prepare the mediator to discuss how the offer benefits each party. Anticipate the questions that may arise and prepare the mediator to answer them.
As the mediation progresses, always be mindful of the issues that remain in dispute and all possible options for resolving them. These include monetary solutions, and other alternative solutions. Possible alternative solutions include: future business opportunities; new or reformed terms to an existing contract or relationship; rights to bid on future projects; discounts on future orders or services to be provided; settlement of other outstanding disputes between the parties or their affiliates; indemnification by one party of the other against future losses or liabilities; introduction to other business opportunities or partners; escrow of funds to be credited to a party based on future events; structured payouts; gift cards; annuities; payment with discretionary benefits, company cars, computers and cell phones in lieu of cash in employment matters. This list is by no means exhaustive. Even within each of these options lie innumerable solutions that may help eliminate any roadblock to resolution between parties.
Mediation can be a significant opportunity for the parties to resolve matters in ways that make most sense. Many of these options cannot be awarded by a judge or jury. It is incumbent upon the parties, their counsel and the mediator to identify and incorporate these alternative solutions into their mediated resolution. Following the above steps will provide a framework to do so.
Hunter Marckwald is a Florida Supreme Court Certified Circuit Court Mediator and is the founder of Innovative Dispute Solutions, PLLC mediation practice. Prior to becoming a mediator, Hunter was in-house counsel for six publicly traded companies where he managed litigation, corporate governance, mergers and acquisitions, regulatory affairs and securities. Before that, Hunter was a litigator with two nationally recognized law firms. Hunter is also available as a receiver, arbitrator or special master. Contact Hunter at: firstname.lastname@example.org or at (561) 619-6941. For more information, go to www.innovativedisputesolutions.com.