Fisher Mediation
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Avoiding Impasse In Mediation – A Critical Checklist for Mediation Counsel

by Paul Fisher, Edited by Judith Stalk

Though there are many basic axioms required for a successful mediation, forget an essential ingredient and the dispute can easily impasse. This is a summary of the most critical elements necessary to avoid impasse. Even though attorneys who have considerable experience in mediation may be aware of the majority of these elements, learning the additional 25%, and becoming acutely aware of the myriad of subtleties of the other elements discussed in this article, will immensely increase the likelihood of a successful mediation.

Choose The Right Mediator

Though some mediators believe they can mediate any dispute, most experienced counsel prefer a mediator who is eminently qualified in the dispute’s substantive issues.

Consider the mediator with the right temperament and mediation style for the particular dispute; i.e., one who is capable of dealing effectively with the personalities unique to the dispute, viz., one who is adept in dealing with highly charged emotional issues, such as in wrongful termination and harassment disputes, or one who is not intimidated by terminally combative parties or attorneys.

Consider a mediator who all the attorneys respect, especially when the mediator is called upon to express a confidential evaluation of the client’s case. Counsel may want to jointly interview prospective mediators in a telephone conference call.

Attorneys still have a choice of private mediators when they have been ordered to mediate by the court, even when the clerk has assigned a mediator from the court panel. In Los Angeles County, the parties continue to have the right to retain a private mediator (Los Angeles Superior Court, Local Rules 12.3 and 12.16). Consider the value of retaining a private mediator even though a court appointed one is available for several free hours from the court panel. Not withstanding the presence of many qualified mediators on the court panel, according to a court official, the county wide settlement rate in Los Angeles is hovering around 55%.

All Parties Must Be Present

The absence of a party, or potential party, from a mediation will almost certainly lead to impasse. Consider the claim by a homeowner against the uphill neighbor for landslide caused by water infiltration, such as from a leaking swimming pool or ruptured sprinkler line. Counsel may wish to consider including the adjacent uphill neighbors, at least preliminarily, unless it has been conclusively determined that the cause of the water infiltration is from only one uphill neighbor in particular. Further, a corrective solution could impact adjacent neighbors of the complaining party, so counsel may wish to consider including the adjacent neighbors to the mediation as well, at least preliminarily.

A representative on behalf of each insurance carrier should be present at the mediation. Insurance can be a big issue – not just the existence of an insurance policy, but policy period as well. Events which may have triggered the occurrence in question may be difficult to pinpoint in time. Make sure all carriers are on board for all pertinent policy periods. There may be multiple layers of insurance for the same occurrence. If there is a potential for denial of coverage, make sure coverage counsel is physically present at the mediation. Coverage counsel could be the true decision maker for the carrier.

All Persons with Ultimate Settlement Authority Must Be Physically Present

Though this is such a basic ingredient of a successful mediation, the issue of who has ultimate authority comes up often, and preferably should be a topic in premediation discussions with the mediator. Take as an example the married person who cannot settle without his or her spouse’s agreement. Suggest having the absent spouse present, or as an alternative, the spouse who is present should have power of attorney to settle and sign a settlement agreement. Another example is the corporate representative or the insurance carrier representative without sufficient authority to settle. What if the person with ultimate settlement authority is located 3,000 miles away? Sometimes telephonic participation works and sometimes it does not, but having the decision maker physically present can make the difference between settlement and impasse.

Sometimes an absent non-decision maker can cause an impasse such as the minority (or “silent partner”) investor who the party feels obligated to contact before making a commitment. On occasion a party needs the input from a mentor, friend or relative. In each of these instances, consider having that missing person physically present at the mediation.

The Right Attorney Must Be at the Mediation

Law firms, corporations and government entities may have more than one attorney assigned to a case. It is common for the firm, company or municipality to send the associate to the mediation. Occasionally, the associate quickly reaches the limit of their counseling or decision making authority, or may not be taken seriously by the opposition. Lead trial counsel must be present at the mediation. Will the attorney who is present, even if lead trial counsel, be capable of negotiating a settlement? It can be difficult for some litigators to make the necessary transition from advocate to counselor in order to resolve the dispute. In this circumstance, lead trial counsel coupled with a skillful negotiation attorney make a formidable mediation team.

The Right Timing in Mediation Can Be Everything

Have all parties been brought into the mediation? Have all insurance carriers been located and are they participating? Do all counsel have sufficient information from their clients and the other parties? Obtaining sufficient information may not necessitate depositions, when the voluntary exchange of documents and information may suffice. However, counsel in other cases may need limited depositions as a minimum before commencing mediation, such as the plaintiff and alleged wrong-doing employer in an employment dispute, or plaintiff and registered representative in a securities dispute.

There is a risk that after the parties have spent a lot of money on expensive discovery, including the taking of experts’ and non-parties’ depositions, that both sides become convinced that the evidence supports their position. Therefore, too much discovery can lead to entrenchment of positions and greatly reduce flexibility, thus increasing the likelihood of impasse.

Some times it is necessary for the court to set a trial date before parties and counsel get serious about resolving the dispute.

Prepare Appropriately for the Mediation

Attorneys and parties send a message to the opposition, and to the mediator, with their level of preparation. That message can range from “I haven’t put much effort into this case because I don’t think it’s worth much” to “Here’s my proof. Pay now or pay later, plus interest, attorney fees and costs, and the risk of punitive damages at trial.” What type of message do you want to send to the opposition? The message counsel send is found in the briefs, statements made during the joint session, and in the private sessions with the mediator. Bring to the mediation all documents which will convince the opposition and the mediator of your position. When you go to trial would you leave the exhibits in the office? The missing piece of evidence can temporarily stop the mediation or cause impasse.

Prepare your client for what to expect from the mediator, opposing parties and counsel, the joint and private sessions, and most importantly how the process works. Analyze with your client the weaknesses in his/her case and the strengths in the opposition’s case. Discuss what has caused negotiations to be unproductive. Carefully outline the costs of pursuing your client’s claim or defense through discovery, preparation for trial and trial, in the event mediation fails. Prepare your client to discuss, at the appropriate time, emotional issues. Consider bringing your client into the creation of the dispute resolution process before the mediation is set up. This helps the client invest in the success of the process from the time of its inception. You might want to provide your client a copy of “All You Need to Know About Mediation But Didn’t Know to Ask — A Parachute for Parties in Litigation,” Business Law News, the State Bar of California, Business Law Section, 1998; and Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, March 1998, available at www.fishermediation.com/library/.

Though witnesses do not usually appear at a mediation, sometimes experts can provide information on highly technical issues upon which the case turns. This can quickly move a case along, and can help prevent a mediation from stalling due to lack of information on the technical issue. If you contemplate having an expert present, be sure to advise the opposing counsel so they can have their expert present.

Consider what the opposition’s needs are. It will likely be necessary to meet at least some of the opposition’s needs. Before the mediation, prepare a list of deal points you believe might meet the oppositions needs. Offering one or more of these at the appropriate time in the mediation can prevent or break an impasse.

Consider alternative solutions to each issue. The more complex the issues and relationships, the more thought needs to be given ahead of time to find solutions. Consider non-monetary solutions such as a letter of reference in an alleged wrongful termination case, a letter of apology, a donation to the other party’s favorite charity. Consider preparing and making alternative demands and counteroffers. Be creative.

Outline the terms which you want in the settlement agreement. Better yet, bring them on disk to be modified at the conclusion of the mediation. Deal points should be discussed with the mediator very early on so they can be negotiated as well as monetary issues. A major deal point raised at the final round of negotiations can cause a shock and lead to impasse.

Is Each Party Paying Their Share of Mediator Compensation?

If one party pays the other party’s share of the mediator’s fee, the non-paying party sometimes is not sufficiently committed to the dispute resolution process, is not sufficiently flexible, and this too can lead to impasse. This is particularly likely when a plaintiff’s attorney is on a contingency fee arrangement and the defendant is paying all of the mediator’s fees. What does plaintiff in this arrangement have invested in the mediation? What does that party have at risk? Very little. That party is literally getting a free ride.

All Parties and Counsel Must Be Committed to Resolving the Dispute at the Mediation

Parties and counsel should take the mediation as seriously as if it were taking place on the court house steps. Anything less and the mediation may impasse.

Commitment is expressed in having the right attorney present, i.e., lead trial counsel and not the associate. Having present a representative of the party who has complete authority to resolve the dispute. Absent decision makers do not have the benefit of being physically present, which might enable them to understand critical matters that cannot be easily communicated telephonically, such as the demeanor and credibility of the opposing party, the level and quality of preparation of opposing counsel, the chemistry in the room, or that little something extra that is missing, along with the true decision maker, that will lead the case to impasse.

Are the parties participating in the mediation voluntarily or are they compelled to be at the mediation by court order? I believe one significant reason for Los Angeles Superior Court’s mediation settlement rate is that there is very reluctant participation of at least one party or its attorney.

Commitment inherently includes the critically necessary ingredient, flexibility. Each party in a dispute must be flexible. They cannot expect that only the other party must be flexible. Each party may have to move significantly from where they want the case to settle. The attorneys need to prepare their clients for this possible eventuality. Each party must be committed to resolving the dispute at the mediation.

Immediately Document the Settlement at the Mediation

Mediations in my office end at my assistant’s computer where counsel use one of a variety of form settlement agreements. The attorneys can add and delete anything from the form agreements, while the mediator facilitates disputes in concepts and language. For mediations conducted at counsel’s offices, I bring the settlement agreements with me on disk.

Failing to immediately document the settlement before anybody leaves the mediation may lead to impasse. Parties may, and often do, change their minds the next day, or in the weeks that it sometimes takes for counsel to draft and renegotiate terms.