Ralph O. Williams III

Mediation Tips - Presentation

• Arrive Early
• Avoid a Bad Start
• Blow up an exhibit
• Joint Sessions - The Good, the Bad and the Plan
• In Mediation Joint Session, Address the Other Side
• What About Lunch?
• PowerPoint Primer
• Joint Sessions Revisited
• Employment Mediation Template

Arrive Early

Top 5 advantages to arriving early at your mediation:

1.     Get the better conference room.  If you are going to be there all day, you might as well be as comfortable as possible. 

2. Settle in.  Find the essentials; drinks, foods, phones, internet connection protocols and rest rooms. 

3. Meet with clients/colleagues.  Go over last minute strategy and tactics. 

4. Preview visual aides.  Microsoft PowerPoint, video tape and other presentations and their associated equipment need to be previewed before the joint session. 

5. Influence process.  Talk to the mediator and pre-sell your ideas for the mediation i.e. no joint session, subjects to avoid with your client or settlement ground work done prior to the mediation.     

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Avoid a Bad Start

Refrain from writing invective-laced mediation briefs that attack the other party and/or their counsel.  This tactic only produces ill will and lowers people’s willingness to discuss settlement.  Worse yet, the mediator consumes valuable time attempting to repair the damage and getting the players to behave civilly

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Blow up an exhibit

We are a visual world. When you blow up an exhibit for mediation it has impact on the mediator and the other side. It says you are prepared and are doing a first class job on your case.

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Joint Sessions - The Good, the Bad and the Plan

Mediating “by the book” requires that we start each mediation with a joint session.  This may not always be the best idea.  Below we look at the good, the bad and the planning of joint sessions.

The Good:  The parties and counsel can meet and greet.   There is the opportunity to present and explore the facts, legal issues and damage calculations, getting everyone on the same page for a productive mediation.

The Bad:  Valuable time is consumed going over issues outlined in the briefs and well known to the parties and counsel.  Listening to lawyers’ opening statements sometimes hardens people in their positions and may unnecessarily hurt feelings.  Many think joint sessions in a well developed litigated matter are a waste of time.

The Plan:  At the mediation’s start each side caucuses separately with the mediator to determine if a joint session is necessary and/or will be helpful.  If there is agreement that a joint session will advance the mediation, then the parties, counsel and the mediator can determine the goals for the joint session, set the agenda and budget an appropriate amount of time.

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In Mediation Joint Session, Address the Other Side

During the joint session of a mediation, address your remarks to the other side’s decision maker and counsel, not to the mediator.  In order to achieve the result you want, the other side must be persuaded that there is risk in continuing to litigate and that settlement is the better alternative.  A professional, straight forward, and appropriately passionate presentation directed to the other side’s decision maker effectively communicates your position with impact that lasts through the mediation. 

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What About Lunch?

Mediations stall when clients and counsel recess for long lunch breaks.  Usually by noon the mediator is busy meeting individually with each side.  The best lunch plan is to order in or pick up from the café in the building.  The mediator can meet with the parties while they eat, continuing the mediation’s momentum though lunch.

Joint Sessions Revisited

Joint sessions often move the mediation process backwards. For an effective  joint session, work with the mediator to answer the following questions.

1. What good will be accomplished by the joint session?  Sharing information, discussing legal issues and working on numbers are good topics for joint sessions.
2. How will that good be accomplished?  Set ground rules to keep collaborative efforts high and zealous advocacy under control.
3. How long will the joint session take?  Avoid the problem of the joint session taking so long that there is no time to negotiate the deal. 

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Employment Mediation Template

Employment litigation was the number one case type filed in Los Angeles Superior Court in 2016. Almost all employment matters are mediated. Because of their factual complexity, intense emotions, layered negotiations and insurance overlay, time must be used efficiently. With these factors in mind, below is a suggested employment mediation template.

10:00: Mediation starts on time with all parties present.

10:00 – Noon: Mediator discusses issues, facts and law with each side. This discussion is facilitated by a pre-mediation exchange of briefs.

Noon: Lunch is served by ADR provider. Everyone keeps working.

1:00: Plaintiff’s team has communicated their opening offer.

2:00: Introduce non-monetary terms, i.e., confidentiality, liquidated damages, wage/1099 allocation and the form of the settlement agreement at the mediation.

3:00: If a long form settlement agreement is to be used, deliver a draft to the plaintiff’s attorney. Work on edits to the long form in parallel with negotiations.

5:00: Negotiations complete, leaving time to finish the settlement agreement; sign, copy and deliver it to all parties and counsel.

6:00: Adjourn on time with a settled case.

This template uses a two party case for the base mediation model. By considering the issues and number of parties, counsel and the mediator can adjust the schedule to accomplish their goals.