Oxymoron or Opportunity
By: Ralph O. Williams lll & Michael P. King
Litigators and mediators are sometimes confounded by the oxymoron of court-ordered mediation. Mediation is a voluntary, confidential, non-binding process in which a mediator helps the parties identify obstacles to settlement and develop strategies to resolve their dispute. When the court compels parties to participate in a voluntary process, litigators can use a court-ordered mediation as an opportunity to advance their clients' interests by following 10 common sense steps.
Background: Court-ordered mediations supplement the judicial arbitration program. In 1979 California Code of Civil Procedure section 1141.10 et. seq. brought judicial arbitration to the litigator’s tool kit. The idea was that cases under $50,000, could be arbitrated, taking them out of the court system and unclogging the trial calendar. However section C.C.P. 1141.20, allowed any party who did not like the result to request a trial de novo. By 1989 most civil litigators regarded judicial arbitration as a waste of time. On a parallel course mediation moved from the labor arena and bloomed as an effective method for resolving the entire spectrum of civil disputes. Noting mediation’s success, the legislature passed C.C.P. section 1775 et. seq. mandating mediation as a option to judicial arbitration. Today, as a matter of course, trial courts order the parties to participate in either judicial arbitration or mediation. Based on the historical ineffectiveness of judicial arbitration, most litigators choose to be ordered to mediation. The success rate of court-ordered mediations is approximately 20 percent, however, because the parties are compelled to the process rather than agreeing to mediate. Conversely, when parties and their counsel agree to mediate, the silent assumption underlying the mediation is that the parties are committed to resolving their dispute. They have already taken three steps in that direction. First, they agreed to mediate. Second, they selected a mediator. And third, they committed to pay the mediator. With these preconditions to success in place more than 80% of voluntary mediations settle. Litigators and parties increase their success rate by treating a court-ordered mediation as an early opportunity to evaluate and resolve their conflict.
The following strategies accelerate the resolution process:
1. Set Goals: When conducting a court-ordered mediation, the goal is to have the parties be better off after the mediation than before. With luck the case might even settle. As counsel, ask, "What can be accomplished at this mediation?" Don’t be too quick to answer, "Nothing, it’s a waste of time!" Brainstorm with the client and colleagues. Together set goals for the mediation. A successful court-ordered mediation is one in which some of the goals are accomplished.
2. Communicate Expectations: After discussing the mediation process with the client and formulating goals for the mediation, communicate those goals to your adversaries. Ask the other side about their goals for the mediation. The process of identifying and communicating mediation goals with the client and the other side increases the meditation’s value and the probability that it will be successful.
3. Prepare: Write a short brief outlining the facts and law and attach key documents, such as the contract or note in a commercial dispute, the police report and important medical reports in an auto accident. Don’t "paper" the pro bono mediator with unnecessary documents. Volume dilutes the message. It is usually best to exchange briefs with the other side. It saves time and facilitates the process. Communicate confidential matters to the mediator by a separate letter, accompanying the brief. This increases the mediator’s understanding and substantially lessens the risk that confidential material will be communicated to the other side.
4. Bring The Players: It is axiomatic that "One can’t play cards without card players". Local court rules require that all parties necessary to make a decision must be present at the mediation. Discuss with the opponent, in advance what parties and representatives are necessary to make decisions and who will attend the mediation. One of the great benefits of the mediation process is that it brings decision makers face to face. Far more is accomplished across the table than over the telephone. Not only does an "all hands" mediation create a greater opportunity to resolve the dispute, it also focuses the litigation track, if the case does not settle.
5. Treat the Process Seriously: Many court-ordered meditations are doomed because counsel simply go through the motions and do not really want to participate. Completing the steps set out in this article demonstrates counsel’s commitment to the mediation process. When both sides approach a mediation in a serious, thoughtful, well-prepared manner, success is virtually guaranteed.
6. Expect Success: It is a self-fulfilling prophecy and there is little doubt that if a court-ordered mediation is expected to be a waste of time, it often turns out that way. However, if counsel anticipates that good will happen and progress will be made, it frequently does. At the very least, expecting success allows counsel and client to be more receptive to the mediative process and the ideas that flow from it. Useful thoughts and ideas emerge which enable the parties to move toward settlement.
7. Explore Positions: One of the most important differences between a court-ordered mediation and a judiciary supervised settlement conference is the amount of time the mediator has available to work with the parties. Many settlement conferences follow this scenario. The judge asks the plaintiff, "How much do you want?", He or she asks the defendant "How much will you pay?", then the judge announces, "Everyone is too far apart" and terminates the settlement conference. In mediation, there is the opportunity to present the case and at least as important, to listen carefully to the other side’s presentation. Be open to questions from the other side, because the answers increase the other side's understanding. At the same time, be willing to ask questions to explore the other side's position. To the extent that the parties are comfortable revealing the interests which underlie their respective positions, the mediation process and the parties begin to develop resolution options. Once motivations, other than the desire to obtain or hold on to money, are known, everyone at the mediation table can begin focusing on solutions that address everyone’s interests rather than the problems separating them. Ask the mediator to help the parties. Do not be afraid to speak up. It’s the mediator’s job to listen. Mediators are trained to be sensitive to everyone's needs. Knowing each side’s expectations, the mediator can help find ways for both sides to accomplish their goals.
8. Narrow the Issues: It is difficult to settle a case in the court-mandated, pro bono, three hour meditation, when a voluntary mediation usually takes the better part of a day. With that in mind, the question becomes, "What can be accomplished in two or three hours which will leave the parties better off than when they started?" While exploring each party’s position, the mediator should be able to discover the impediments to resolution. This is another way of saying the issues are narrowed or clarified. Given the imagination of lawyers and the general complexity of the facts and law of any particular case, it is not difficult to find as many as a dozen issues in controversy. If, during the course of the mediation, there is agreement on the critical issues impeding resolution and driving the parties toward trial, much has been accomplished and the case will have moved significantly toward settlement.
9. Target Discovery: Once the issues have been narrowed, good lawyers can agree on what focused discovery must be completed before one side or the other is prepared to re-evaluate its position. It might be only the review of one set of documents, a summary of damages or the taking of a key deposition. With the necessary parties present in the room together, often they can agree on a schedule for the exchange of information and arrange convenient dates to complete necessary depositions. This approach saves both sides money and time because the most important discovery is completed first. If this alone is accomplished, the mediation is a success.
10. Play For a Process: Alternative dispute resolution is not a "one size fits all" concept. During a court-ordered mediation the parties can design their own method to resolve their dispute. They might agree on a second mediation session, short cause trial, binding arbitration, (with or without a high-low agreement), or further good, old-fashioned, face-to-face negotiations between counsel and parties. The court-ordered mediation is a success if, at its conclusion, both sides agree on the next step in the resolution process.