Bar News - October 21, 2015
Alternative Dispute Resolution: In Preparing for Mediation, Ask the Right Questions
By: Donald Frechette
Good lawyers know that preparation is paramount in almost everything we do. In preparing for mediation, there are some key questions to ask to optimize your chances for a successful and consensual outcome.
First, know the strengths and weaknesses of your case (which, of course, also means knowing the strengths and weaknesses of your adversary’s claims). This may sound simplistic, but a “T-Chart” can be a highly effective way to organize your thoughts about what your case has to offer, and where it may suffer. Ask yourself: Are there open factual issues that will require further discovery and, if so, how involved (i.e. expensive) will that process be? Are the legal questions presented the subject of well-developed case law, or are they novel issues of first impression (thus increasing the likelihood of subsequent appeals and their attendant costs)?
These questions will aid in case evaluation and in considering how your opponent views his side of the dispute. Does the other side have an unreasonably rosy view of potential outcomes, facts or legal issues and, if so, what can you do to influence those mindsets?
Next, outline what you’d like to accomplish. Is the case just about money, or are there other remedies/outcomes that need to be considered? Take, for example, the termination of a contractual relationship. Does the termination need to be immediate, or can there be a transitional component? Also, if your potential outcome involves one party performing (or refraining from performing) an act, how will their performance be judged and, if it is deficient, what is the remedy?
Understanding areas of disagreement is important, but it is equally vital that you develop an awareness of the issues, both factual and legal, that you agree on as well. Are there parts of the case that can be successfully disposed of, or is it an “all or nothing” proposition? And, if there is agreement on an issue, what can you do to assure that that agreement doesn’t evaporate should the mediation fail and the parties return to litigation?
Determining what the potential impediments to settlement are, whether financial, legal or emotional, also is a key component to preparing for mediation. Does one side have superior economic power? Are there legal reasons (contracts with third-parties, for example) why a desired outcome can’t be achieved and, if so, are there ways to potentially skirt those matters? Are the parties emotionally invested in their claims such that an objectively reasonable resolution has been imperiled? Understanding that these obstacles may exist is the first step in potentially breaking through them.
Many cases aren’t just about money, so it is also necessary to be creative in terms of fashioning a particular remedy or outcome. If the parties haven’t destroyed their business or personal relationship, is there a way that they can do business with one another in the future, so as to ameliorate the potential financial impact of an immediate monetary resolution? Can the remedies or financial payments be staggered over time? Can confidentiality agreements or agreed-upon public pronouncements be used to impact the outside world’s view of the resolution and the participants?
Two final thoughts bear mentioning. First, if the settlement, once achieved, goes awry, what then? Can the parties agree that the mediator will, for example, be designated to resolve all disputes (including, potentially, by paper submissions)? Will settlement payments or relief that has already been provided be forfeited and subject to recoupment? Will there, in the case of breach of a confidentiality clause, for example, be a liquidated damages provision? Will the non-breaching party be entitled to a discretionary (or non-discretionary) award of fees?
Second, what are the likely outcomes if the case doesn’t settle? How much will the litigation cost? How long will it take? How much of an institutional or personal distraction will it be? Providing the parties with a candid and complete assessment of the pain potentially associated with their failure to agree can often provide a powerful incentive to resolution.
This, of course, is just a thumbnail sketch of the many factors that go into any successful mediation effort, and one size definitely does not fit all. But asking these questions and others can help adequately prepare counsel and clients for mediation success.
Donald Frechette is a parter at Locke Lord in Hartford, Conn. He has been a member of the New Hampshire bar since 1983, and practices primarily in the field of commercial litigation.