French: Predicting mediator’s agenda key to success

By Peter French

Mediation results in a settlement more than 85% of the time. However, getting to “yes” is hard work — especially for the mediator. While we lawyers do a great job of advocating in mediation, we could do more to make the process more productive, and perhaps improve the likelihood of settlement, by focusing on developing the mediator’s agenda in advance of mediation.

What is a mediator’s agenda?

In his book “The Mediation Process” (4th Ed.), Christopher W. Moore describes the mediator’s agenda as that part of the mediation process where the issues, needs and interests of the parties are identified. Issue framing includes identifying what information needs to be presented, exchanged, discussed and understood in order to facilitate a successful negotiation. The mediator has the arduous task of choosing the appropriate setting to frame the issues.

Author David Richbell, in his book “How to Master Commercial Mediation,” similarly describes the mediator’s agenda as the exploring stage in mediation. According to Richbell, the exploring stage is where the mediator establishes what the real issues are so that a negotiation can occur that meets the needs of the mediating parties. Richbell rightly points out that the focus on needs, not claims, is key to successful deal-making.

Authors Suzanne McCorkle and Melanie J. Reese, who may have coined the phrase “mediator’s agenda” in their book “Mediation Theory and Practice” (3rd Ed.), describe this phase of the mediation process as that stage during which commonalities are identified, negotiable issues are listed and the mediator establishes the major concerns of the mediating parties. The agenda is based upon the opening statements and/or mediation statements submitted by the parties to the mediator.

The mediator should never be left to guess the true issues, needs and concerns of disputing parties. Until I read these books, however, I rarely, if ever, focused on the importance of the mediator’s agenda in preparing clients for a successful mediation. So, I went back to the Indiana Rules of Alternative Dispute Resolution to see why the rule addressing the mediation process fails to instruct lawyers to assist in the development of such an agenda. It turns out the rule squarely addresses the subject.

Rule 2.7 of the Indiana Rules of Alternative Dispute Resolution governs the mediation process. The language in Rule 2.7 gently nudges the parties to provide data that will be informative in developing the mediator’s agenda. Let’s look at the rule.

Rule 2.7(B) expressly outlines the process for handling mediation conferences. Subsection (B) identifies who must be present, who may be present, when a session may be joint, when a session may be separate and the boundaries of the mediator’s discretion in overseeing mediation conferences. Subsection (C) describes what substance should be included in a mediation statement. In general, a mediation statement is much like a persuasive memorandum of law advocating the position of a party. The mediation statement, however, is not intended to be entirely persuasive. Rather, Rule 2.7(C) is designed to provoke lawyers to consider the strengths and weaknesses in their case, thereby educating the mediator as to the issues, needs and interests of the parties, which may improve the likelihood of a successful compromise. The mediator’s agenda often develops from reading the portion of each party’s mediation statement that focuses on strengths, weaknesses and development of respective settlement positions.

The Rule’s intent to provoke thoughtful, objective discussion regarding all sides of a dispute is readily apparent. Subsection (C)(1) directs the parties to include the legal and factual contentions of all parties as to liability and damages, not just their own contentions. Subsection (C)(2) instructs the parties to identify the factors considered in arriving at their current settlement posture. And, Subsection (C)(3) requires the parties to describe their efforts to reach a compromise outside of mediation.

I confess I have great difficulty objectively identifying and sharing with anyone the weaknesses in a client’s case. I equally hesitate to recognize and communicate the strengths in an opposing party’s case — even in a confidential mediation statement. I bet we all do. Such confessions go against most of the training we received throughout law school and in practice. Nonetheless, sharing such information in a section of a mediation statement is critical to a successful mediation.

First, unlike the lawyers involved in a dispute, the mediator has not lived the case and has a very short period of time to understand the legal issues, factual issues and likely range of outcomes. In that short learning period, the mediator also must develop an impression of the strengths and weaknesses of each side in order to develop a basis for negotiation. By sharing your objective analysis of both the weaknesses in your client’s case and the strengths in the opponent’s case, you are demonstrating to the mediator that you spent important time thinking about those subjects and understanding their impact on the merits and settlement value of the case. In doing so, you have not only made the mediator’s job easier, but have developed credibility at the very beginning of the negotiation process.

Second, dealing with weaknesses in a mediation statement is no different than dealing with “bad facts” in the direct examination of your client on the stand. If you run from weaknesses, your opponent will hammer them on cross, scoring points with the decision-maker. Alternatively, if you deal with them, much, if not all, of the potential harm can be diminished or eliminated. By showing you are prepared to deal with flaws in your client’s case, you inform the mediator about the quality of your representation.

Time spent preparing the mediator’s agenda in advance of mediation is time well spent. The exercise informs the client of the probabilities in a litigated outcome, allows you to develop solutions that mitigate the impact of bad facts and informs the mediator of where the needs of each side may be so that an efficient and successful negotiation may occur.•

• Peter French — [email protected] — is a partner in Taft’s litigation group and a certified mediator. Opinions expressed are those of the author.