MEDIATION, FROM A PRACTITIONER’S PROSPECTIVE


Karl Gerber has represented Los Angeles plaintiffs in employment litigation since 1993. He has mediated more than 1,000 full day mediations with all levels of mediators. While most articles about mediation are by mediators, about what practitioners should do at mediation, this is an article written by a practitioner to mediators.

ONCE THE PARTIES ARRIVE

At the scheduled start time, the mediator should be with all parties, or physically acknowledge all parties present within five minutes of the scheduled start time. Every human being, from a minimum wage worker to an executive of a Fortune 500 company, does not like sitting in a room for ten minutes to an hour from the scheduled start time before meeting the mediator and it being explained what is going on.

Mediators must be selective in their conversations with counsel and others in trying to gain a rapport. Discussions about family members, common acquaintances, other cases, and humor about the legal system is not appropriate. Clients do not understand those types of conversations. Most clients do not litigate, or mediate for a living. The case is their important legal experience. Conversations about lavish or lengthy travel is also not becoming. It makes the mediator sound retired, lazy, and put out by actually having to work hard on legal work which is what actual party expects the mediator to do especially if they charge a large sum of money to mediate.

Mediators need to be very careful in commenting that is unnecessary for a lawyer to bring materials with them such as boxes of files. If the mediator wants to make it appear as though they are trying to deal with the facts and evidence, or really dig into the matter, they should respect the lawyer who brings exhibits, depositions, discovery responses, and pleadings. Any mediator who gives exhibits back to an attorney at the start of mediation, in front of an actual party, saying they don’t need them anymore sends a very bad message. Even if the mediator views materials as irrelevant, or unnecessary they need to choose the right time, if ever, to say so.

JOINT SESSIONS

Many credible mediators do not use joint sessions. Others feel things need to be flushed out in joint session. Some mediators feel the ability of advocates need to be seen in joint session, actual clients need to be seen and demonstrate they can coherently deliver, advocates need to first say what the mediator will say the rest of the day, advocates and clients need to feel they vented, and a whole host of other reasons supporting the joint session. A good mediator makes the right call about whether a joint session should occur, and what will occur there.

Serious thought must be given to telling advocates, or otherwise controlling what will happen at the joint session. The mediator needs to be in control, but attorneys and clients want to feel like they can do their thing too. A good mediator must also seriously consider how much control the advocates and parties have about what happens in that joint session. To tell an advocate to go to a joint session, but not say this, that, and five other things is questionable. It crimps style and detracts from what the advocate thinks is important. However, there are times when an advocate’s plans are counter productive and the mediator needs to make that call before it happens.

Putting time limits on joint sessions may be a good idea. It is also acceptable to remind parties how much time they have left. The theory that joint sessions should go as long as they are productive may lead to college debate style. Sometimes issues are flushed out that way, and sometimes they are not. College debate style may also cause parties to become overly invested or convinced in their positions which is counterproductive.

Joint sessions are not trials. This is a two edged sword because to allow things in a joint session that could not happen in court can lead to disastrous consequences and a lack of credibility. On the other hand, not allowing that which would be allowed in court creates credibility issues. For example, witnesses should not be coming in to testify in an abbreviated fashion controlled by the party putting them on without letting the witness be questioned by anybody else. The use of material that cannot be used in court is questionable. Lawyers with trial experience lose faith in a mediator relying on such as well as the advocate who prepares such. For instance, editor’s cuts of a video deposition of witnesses who will obviously testify at trial, who have not impeached themselves, presents a deceptively dramatic backdrop because that presentation will never happen in court[1]. Additionally, far too many times, the out take, or other video has little impact. The party who put the video on is then so embarrassed or disparaged by the other side they crumble, or spend hours trying to build themselves up because their outtakes didn’t have the impact they expected. Similarly, the party who did not put the video on will spend a lot of time arguing against the videos’ admissibility, or effectiveness.

ISOLATING THE REAL PARTIES FROM THE MEDIATOR

Joint sessions involving everybody but the plaintiff are an insulting joke. It is not a joint sessions to meet with lawyers, but not clients. A long meeting, early on, excluding clients is viewed with skepticism by the parties and more likely than not will cause the parties to lose faith in the mediator. Mediators who plan to isolate clients from the process, on a frequent basis, are viewed as arrogant people. Clients do not understand why they should be isolated from their dispute no matter what speech the mediator gives. The mediation is the party’s mediation.

Lawyers get into trouble with their clients at mediations where the mediator spends a lot of time excluding the client from the conversation. The mediator’s views are not necessarily the views, or opinions of counsel. If the mediator wants to express their views or opinions, they need to seriously consider whether it is fair to make a party’s attorney give continuously negative assessments they may not agree with, and may cause the client to feel like their attorney does not like or believe in their case. Clients expect the mediation to be on the “up and up” more than anything else. When they feel a mediator is chummy with anybody, or is doing all sorts of things behind closed doors they think it’s not an honest process.

A mediator is also isolated from the mind that matters if the wrong person has been sent. Participants who are afraid to settle, have a reputation of not settling, are new to their job and afraid to make waves are useless bodies at a mediation. Alternatively, persons who obviously cannot get authority like an adjuster who never has six figure authority, or low level management, should not be sent on a case with any real value.

Under all circumstances, mediators must refuse to mediate if no actual person with authority plans to show up and there are representations such as a lawyer “has a line into the client,” has done a lot of cases for them, knows the client well, or has “full authority.” That type of mediation is essentially a brow beating session on the actual party who does show up. That type of mediation sends a very bad message to the parties and attorneys who do take the time to show up. Besides, how is the mediator supposed to change a side’s position let along get their position across if that party is not present?

Mediators need to respect ethical considerations, Rules of Professional Responsibility[2], and concepts relating to parties being reasonably well informed and giving actual consent, and make sure their method of mediating is not violating these rules. Settling a case is the most critical decision that can be made about litigation. A client who is not present to hear what is occurring at the mediation is making an ill-informed decision to settle if the amount being recommended by counsel is based upon what happened at the mediation the client was not present at.

Many defendants have learned the game of mediation is to send somebody with limited authority and spend the day trying to dish out that limited authority, with no intention of moving off it, while trying to see how low the plaintiff will go. This is a useless mediation because the mediator is not moving the defendant. The mediator must call this situation as soon as possible and indicate it is not acceptable. The purpose of hiring a mediator is to change positions and see alternatives opposed to dishing out authority in a predetermined limit that will not change.

MEDIATORS AS FACT FINDERS, SMOOTHS LAYERS, AND IMPARTIAL ATTORNEYS FOR EACH SIDE


Many mediations are attempts to predict issues based upon snippets of evidence. Rarely does a mediator have enough time to decide a case after hearing and analyzing all the evidence. Nor are mediators experts on every legal issue. Even if they were, their analysis is all but useless if a jury is going to decide the case. Mediators simply do not think the same way as jurors. They analyze legal issues and rely on years of alleged experience (often very outdated), and hundreds of results in other mediations.

Trying to predict results, and pretend as if the evidence presently available is all that will be available, or is what will be deemed significant later is disingenuous. Advocates do not always know what the issues will really be, what witnesses will really say, what rulings the judge may make, and what witnesses either side will eventually drum up. Making a lot of predictions about factual and legal outcomes is inappropriate for a mediator who is not presently licensed as an attorney because predictions are legal opinions, and the rendering of legal opinions constitutes the practice of law[3].

Even in mediation close to trial, when many witnesses have been deposed, the mediator neither has the time, nor the opportunity to hear the case as it will really be presented. The mediator cannot pick up on nuances in demeanor. They will never have the time to read and consider everything said in every deposition. Mediators are also relying on depositions taken by opposing counsel without any development on what might be elicited on direct.

Mediators must recognize they do not think like juries. Their job is to hear snippets of one or two different cases every day and draw conclusions. Many jurors are trained not to make conclusions in their jobs, or simply are not experienced in doing so. Few jurors are used to hearing evidence presented by adversaries and trying to figure out what really happened while applying legal instructions. While mediators may spend the time to thoroughly read and examine a twenty page contract important to a dispute, thirty five different written exhibits, or even a few medical reports causing them to access a medical dictionary every page, many jurors are not accustomed to reading anything in their jobs let alone more than a half page a day pertaining to what they do which is probably dissimilar to the exhibits in the case and definitely dissimilar to jury instructions. The ability to read statutes and legal instructions is as foreign to most jurors as reading a foreign language, or to perform a kidney transplant using anesthesiology and narcotics let alone locate various organs in the body. Even a highly intelligent juror, being thrown into the foreign atmosphere of fact finding, exhibit reading, and instruction following is like the highly athletic lawyer who works fifty hours a week as a lawyer and is asked to dig trenches, pour concrete footings, cut rebar, mix mortar and build an eight foot wall. Some lawyers might be able to take on a physically challenging, skilled project like masonry wall building, but it would be a great challenge, with a sweat, without confidence and corners would be cut.

Mediators must be careful how much time they want to spend exchanging view points and spins on the facts. This process invests each side in their case as they present and develop arguments and pick facts out of whatever evidence is available. Mediators must also be careful not to artificially stop factual and legal analysis if they chose to start it.

Mediators are not there to educate one side about something they found out from the other side because they got the other side’s confidence as a mediator. For example, if the mediator becomes aware of questionably ethical conduct of a party or attorney, the mediator should not tell the other side. It will merely inflame matters. Such disclosure will also create a bizarre situation because generally the mediator cannot be subpoenaed to testify[4] and almost everything said during the mediation is confidential. Additionally, once a mediator begins acting as an advisor to the weaker side they are acting as an advocate not an impartial facilitator.

Mediators need to deal with what is before them. Telling a party they need to go out and take a host of depositions before a decision can be reached is ineffective. Parties appear before mediators to resolve a case. A good mediator can resolve a case regardless of whether a particular deposition has been taken, an expert has been retained, or otherwise. Regardless, the mediator has been hired to deal with the case as it is not as what it may be at some point in the future.

Mediators should never tell parties to present C.C.P. 998 offers. It is taking sides to explain where the effective 998 offer would be that would “screw” the other side if they did not accept. Mediators should also refrain from presenting lists of what parties have to do in order to better their positions. That is giving legal and strategy advice.

WRITTEN SETTLEMENT AGREEMENTS

Besides the various statutes and rules of law that require settlement agreements to be final, and in writing, it is also important to get a final agreement at the mediation because deals can fall apart due to disagreement in terms. Tightly negotiated and heavily litigated cases may need mediator supervision as to terms in a written settlement. It is also probable that terms will creep into agreements written after the mediation that were not contemplated, nor agreed to at the mediation.

Mediators, however, must be careful about having parties sign agreements that are truly mediated, coerced, and against a party’s real wish. It is unfair to counsel for the mediator to pressure a party into signing an agreement only for the client to be mad at the attorney the next morning. Mad clients often refuse performance in various means. A plaintiff may refuse to sign a second agreement, or an additional document to conclude settlement. A defendant may refuse to pay in a timely fashion, over withhold on a check to a former employee, or insert new terms into other documents after the mediation.

Parties should be told just how long the mediator will give them to write the agreement. It is possible that a party will change their mind, or even leave if a long period of time is elapsing while an agreement is being written. However, mediators must ensure that counsel and parties have adequate time to write and review the contract to avoid numbers that do not add up to what was agreed, failing to specify in writing a critical term of settlement, or something never contemplated, nor read before signing.

The mediator is neutral, and cannot be subpoenaed to testify so the mediator must be careful about their role in the settlement agreement. Mediators should not sign the agreement, and may wish to avoid keeping a copy of the agreement as if they were the custodian of it.

POST MEDIATION CONDUCT

A bad mediation is worse than had there been no mediation. Bad mediations infuriate counsel and clients. Usually clients are dissatisfied with the lawyers, the lawyers are dissatisfied with the mediator, and often the lawyers are angry at each other and feel the situation is hopeless. Because mediation is an intense process, a bad mediation is like a lover who unilaterally decides to stop calling with no explanation. Mediators must do follow-up if they do not settle. Attorneys and clients believe mediators are paid far too much not to settle a case, nor make attempts thereafter.

WHAT HAPPENS YOU DON’T KNOW ABOUT?

If you’re a mediator violating a lot of what is contained in this article, ask yourself how high your success rates really are and what kind of settlements you are really mediating. Are your settlement rates high only because of follow up, or are your cases settling for some other reason weeks after the mediation? Are you effective because you pound one side over the other? Do you have an inherently negative view of litigation or one side that allows you to unrealistically cause parties to believe things? Do you really know what is happening with the settlement agreements being hashed out after the mediation? Have you talked to any of your attorney clients about how their client felt a day or two after the mediation and whether that client would ever use the lawyer again? Were there long delays in agreements being signed because parties did not want to, or because there were fights after the mediation? Were checks issued late or incorrectly because the defendant was mad?

It is debatable whether effectiveness means resolving a case that leads to clients leaving lawyers, parties refusing to sign an agreement, challenges in court to the alleged settlement agreement, or an inherently unfair settlement to one side. A good mediator has style they cannot afford to lose. The mediators who are in touch with the concepts discussed in this article are much more likely to keep their style.

Mediators should stay stylish and magical because that’s what mediation is about. Mediation done right is magic because it cuts through months of litigation, thousands of dollars in expense, lots of hurt feelings and annoyance, and may be a compromise which cannot be reached in court and is better for both sides. But if done wrong, mediation is a curse. So all you mediators, aim high with style and make mediation what it is supposed to be, magic.

[1] With the exception of unavailable witnesses, California Code of Civil Procedure 2025.620(a) only allows a non-party’s deposition to be used while the non-party witness is still on the stand if the non-party witness has testified in a manner contradicting deposition testimony opening themselves up for impeachment; also see California Evidence Code Section 770(a)(b).

[2] Rule of Professional Responsibility 3-500 requires attorneys to keep clients reasonably informed about significant developments in the matter the attorney is providing representation. Rule of Professional Responsibility 3-510(A) requires that attorneys promptly communicate settlement offers and terms of settlement. In mediation, with offers being made quickly, attorneys negotiating for an absent client may fail to promptly communicate each offer and term of settlement to a non-present client who later resents that failure.

[3] Giving of legal advice on matter, regardless of whether there is a matter pending before a court, constitutes the practice of law under California Business & Professions Section, Mickel v. Murphy, 147 Cal.App.2d 718, 721 (1957) disapproved on other grounds in Biakanja v. Irving, 49 Cal.2d 647, 651 (1958), but cited approvingly in Birbrower v. Sup. Crt., 17 Cal.4th 119, 128 (1998).

[4] California Evidence Code Section 1127 even allows attorney fees if there is a determination that what the mediator was subpoenaed to testify or produce was not admissible.