session.

This article describes key mediation advocacy strategies and how the process can work for you.
PREPARE YOUR CLIENT FOR MEDIATION

the process dynamic even after the parties leave the room. Third, gain a better understanding of the other sides case. Actively listening to the oppositions story will give you a better understanding of its position than any form of discovery.
WHO WILL MEDIATE THE CASE?

Most businesspeople know the terms mediation and arbitration but confuse the two processes. It is important, therefore, to explain and understand the differences. Mediation is an informal, voluntary, non-binding process in which an impartial person helps the parties reach a mutually acceptable resolution. The mediator is trained in facilitation and negotiation techniques to work with the parties to identify possible solutions. The mediator cannot impose a solution but works with the parties to create their own solution.6 In contrast to mediation is arbitration, which is a mandatory, final, and binding process in which an impartial person decides the case for the parties based on the evidence provided by the parties. The arbitrator is trained to make decisions and is limited in structuring the outcome by the relief requested by the parties. The results parties achieve through mediation, however, often include relief not available in arbitration. Mediation is a problem-solving process. The objective of mediation is to provide the parties with meaningful choices between continuing to arbitrate or accepting the best settlement option available. The party who is able to persuade the other side to offer up its very best option before it is rejected or accepted wins in mediation. On the other hand, the party who causes the mediation to end before obtaining the best alternative that the other side has to offer loses in mediation. While settlement may be the ultimate goal of mediation, an exchange of money is not the only solution to a claim. Keep the client away from the bottom line and instead brainstorm alternative solutions that focus on remedying the damage done. Explore other goals that may be obtained through mediation but may not result in a full settlement of the case. Three goals can be achieved: First, settle side issues that would frustrate the arbitration process. Narrowing the issues to be resolved will streamline the arbitration process and reduce the time and cost to adjudicate the remaining issues. Second, use the mediation to define next steps in the process rather than to call an impasse. Keeping lines of communication open and moving the process forward by sharing information as it becomes available increases negotiation opportunities. A role for mediation is to keep
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Selection of a mediator is as important as selection of an arbitrator. Think carefully about your objectives and the role you want the mediator to play in the process. An important consideration when choosing a mediator is to determine who the other side will listen to. Often, parties will defer to the other side in the interest of securing a mediator who has mutual trust and confidence. Remember, the mediator is not deciding the case so theres no chance of biasing the result if you select a mediator recommended by the other side. Gather as much information as possible about potential mediators. Review websites of dispute resolution providers to identify a potential mediator. Find out mediator candidates experience, style, and qualifications. Talk to colleagues and others about their experiences with mediators. Interview mediator candidates to assess their approach and validate the information provided by colleagues and others. Consider including your client in such a meeting. An objective for including your client in these meetings is to get the client to buy into the mediation process as well as to gain trust in the mediator ultimately selected. During the interviews, ask the mediators for names of counsel they have worked with before. Discuss with those lawyers the proposed mediators energy, style, creativity, and results. Mediator styles vary. The style should match your objectives. There are two styles of mediation. They are defined as facilitative and evaluative. Most successful mediators use a combination of the two styles. One mediator might say he is facilitative in the morning and evaluative in the late afternoon. Whichever approach is used, it is important that you select a mediator based on the style that you believe will be most effective in your case. What is the difference between the two? A facilitative mediator uses techniques to help the parties negotiate by organizing the discussions, encouraging and coaching the parties, making suggestions while exploring options, and setting the pace of the negotiations. As the mediator uses these techniques the negotiations between the parties are focused and better communication develops, thereby building trust and overcoming emotions. Through
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the process, the parties and counsel focus on common areas of agreement searching for mutual gains. The mediator develops options to resolve the dispute that the parties cannot reach because they are entrenched in their respective views of the case. The end result is that the facilitative mediator avoids interjecting his opinion and instead leads the parties to their own conclusion based on the information that is communicated and flows between the parties. An evaluative mediator analyzes the legal and factual issues in the case and the different parties views, and presents a view of what will or will not happen in arbitration. The evaluative mediator assesses the relevant facts and law as well as the evidence that will be presented during the arbitration, and provides a view of how the arbitrators will react to the key issues of the case. This description may sound like arbitration but it is not. The evaluative mediator tests the parties reality and helps them reassess their alternatives but the parties are not obligated to accept the mediators evaluation. Instead, they use the information to move negotiations forward and contain their exposure in the matter as it moves forward. After you gather all the above information, prepare a short memo summarizing the information. Review it with the client and involve the client in the ultimate selection of the mediator. In the final analysis, the mediator should be someone who will be respected by both sides, who has demonstrated an ability and desire to work hard, and who always will demonstrate neutrality.
WHEN SHOULD YOU MEDIATE?

to determine when the information is required to develop the case before reaching a settlement. Mediation can be in two stages: The first stage focuses on the core legal and factual issues. Then the parties return at a later date to close the matter. Of course mediation can occur shortly before the arbitration hearing after full discovery is completed and the parties know everything they could possibly want to know about the case. At that point, however, the parties have invested money and time in the matter. The cost benefit of mediating is lost. The prudent approach remains to mediate as early as possible.
ACTIVELY DESIGN THE MEDIATION PROCESS

Recently, a seasoned mediator was asked when was the best time to mediate a case. Her answer was, The best time to mediate is when you have enough information to evaluate your settlement options. Decisions to mediate and settle do not always intersect and, in fact, are made on different criteria. The best time to mediate will vary from case to case. Some advocates believe parties should mediate as early as possible while others wait until full discovery is obtained.7 Again, when deciding when to mediate, review the goals for mediation. Often a mediation session sets a time frame and process for the parties to obtain the information they need to evaluate their settlement options. Some advocates mediate as early as possible before the parties are invested in the outcome and their positions are hardened. Lack of information at an early stage may impede settlement, but a process can be put in place 38
THE KEYS TO EFFECTIVE MEDIATION ADVOCACY

Once the mediator is selected, focus on the process that will be used to mediate the case. Ground rules should be developed that make sense for the case.8 The ground rules establish the legal and procedural framework for mediation. Dispute resolution providers will require that the parties execute an agreement to mediate that contains their ground rules and protections such as: forum and mediator immunity and confidentiality of the proceedings. Speak to the mediator privately before the mediation session to enlist assistance in meeting your goals for the mediation session. Aspects of the mediation that should be resolved at this point include a variety of logistical issues such as: where the mediation will occur, how the room should be set up, audiovisual requirements, whether there will be a joint caucus with the parties, whether the parties will submit mediation briefs, and how long the mediation session will take. The advocate should consider the mediators experience and views on each of these items. Explain to the mediator special circumstances that may impact the meeting of the parties such as an emotional party or witness. Secure the mediators assistance in ensuring the attendance of a witness you believe is critical for your case or making sure that the critical parties who have authority to settle the matter are either present or available on short notice. Help the mediator anticipate problems so they can be effectively addressed as they arise. Prepare for an active day where the facts and law are laid out and options are
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aggressively discussed and evaluated. The mediation session will be hard work.
AVOID IMPASSE

ENDNOTES
www.uscourts.gov/library The Courtroom of the Twenty-First CenturyADR by John M. Barkett, Esq. in Conflict Management, Volume VI, Issue 2, 2002, American Bar Association, Summer 2002. 3 Shearson/American Express, Inc. v. McMahon, 482 U.S.220, 107 S.Ct. 2332, L ed. 2d 185 (1987). 4 See Commercial Arbitration at Its Best: Successful Strategies for Business Users, Thomas J. Stipanowich, Editor, 2001, by the American Bar Association and the CPR Institute for Dispute Resolution. 5 See www.nasdadr.com 6 The NASD website contains educational material that defines mediation and rebuts the common arguments raised against using mediation. 7 See page 16-2 in Securities Arbitration Procedure Manual, Fifth Edition, by David E. Robbins, Lexis Law Publishing Legal Publishers, 2002, for anecdotal discussion of when mediation should occur in securities cases. 8 Major providers of dispute resolution services have ground rules that can be followed. Refer to each organizations website for their proposed ground rules. NASD rules can be found at www.nasdadr.com; JAMS ground rules can be found at www.jamsadr.com; New York Stock Exchange rules can be found at www.nyse.com.
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Mediation sessions should be viewed in the best possible light, but what happens if the parties cannot reach an agreement? Settlement is not the only option, nor is impasse. Before the session is terminated, develop a contingency or follow-up plan to determine next steps. One of those next steps is to work with the mediator to determine what is blocking settlement. Identify the fundamental differences between the parties and determine what can be done to overcome the differences. After the differences are identified, examine and analyze them to validate. Focus additional discovery on the differences or consider consulting with a neutral who will provide a neutral evaluation. Each step should add information that will draw you to evaluate which settlement option is mutually acceptable. These differences can be anticipated before the mediation session but sometimes they arise during the mediation. If you plan in advance on that contingency, you will be prepared with an option to keep the mediation in motion.
CONCLUSION

To order reprints of this article, please contact Ajani Malik at amalik@iijournals.com or 212-224-3205.

This article simply identifies some of the keys to effective mediation advocacy. What I hope you glean from this article is that the primary key is preparation. As advocates and parties become more sophisticated in the use of mediation, settlement will get easier or harder depending on the level of preparation the advocate invests in the process. The preparation ultimately will result in greater client satisfaction in the outcome and reduced cost associated with resolving the matter.

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