Bar News - October 18, 2017
Alternative Dispute Resolution: COMMENTARY: Mediation in NH – A View from the Trench
By: Kathleen A. McGuire
TIP: Remember that in mediation ex parte communcations are not a concern. Lawyers may want to tell the mediator privately, for example, about any physical or mental limitations the client has, or any difficult dynamics between or among any of the participants in the mediation.
As a Superior Court judge, I participated in many forums where I was asked to provide “a view from the bench” on various topics. My perspective was informed by pleadings, hearing arguments, ruling on motions and conducting jury and bench trials. I also had opportunities to observe the relationships between lawyers and their clients or each other.
My experiences as a mediator have offered me a different perspective, one “from the trench” (please excuse the not-so-clever play on words). Now, I mediate in lawyers’ offices, often participating in candid conversations between them and their clients and each other. Different client personalities and experiences, not to mention lawyers’ styles, make for the challenging and fun improvisational theatre that is mediation. Here, I would like to share the observations of a retired judge on the practice of mediation.
Noticeable variances are obvious among lawyers in the ways they prepare their clients, themselves, and the mediator for mediation. Good client preparation means explaining the law as it applies to this case and offering a realistic assessment of your legal positions, risks of going to trial, and value of the case. Lawyers must be clear that pleading a cause of action or defense does not mean it will hold up factually or legally. They must provide their clients with, and encourage them to read, the mediation statements and expert reports of the opposing side, to more fully appreciate the vulnerabilities of their own cases.
Lawyers must also manage the expectations of their clients, and perhaps themselves. If, as a plaintiff’s attorney, you are valuing your client’s injuries greatly over what insurance companies typically pay for a certain type of accident or injury, or, as a defense attorney, you consistently convey that the plaintiff “doesn’t have a case,” do not be surprised at mediation when your clients are reluctant to budge.
Along this same line, lawyers for plaintiffs and counter-claimants are regularly filing Consumer Protection Act (CPA) claims seeking treble damages and attorney’s fees. A $200,000 case now becomes, in the client’s mind, a $1 million case. The client is attached to the seven-figure number, even though succeeding on a CPA claim is extremely unlikely. The client cannot see how it can be fair for her to “come down” from $1 million to a solid settlement figure of $200,000 when the defendant only came up from $25,000 to get to the same figure.
Lawyers should also explain the mediation process and what to expect. It’s important to remember that this is your client’s first mediation and appreciate how consequential and anxiety-provoking it is. Walking your clients through the process some time before, not the day of, the mediation, can ease their apprehension. Often, it is cathartic, as well as an effective settlement strategy, for parties to speak directly to the other side. Explore this option with your clients and prepare them to do so in an appropriate way if they are so inclined.
Lawyers also need to prepare themselves for each mediation. This means reviewing the file and thoughtfully assessing the factual and legal positions as well as those of the other side. It means preparing a mediation statement that will usually be seen by the mediator, client, and opposing counsel and parties. Some lawyers are effectively presenting videos at mediations that show “a day in the life of” their client, or excerpts from video depositions of the parties or expert witnesses, to demonstrate case strengths and weaknesses.
Also, prepare the mediator. This begins with a solid mediation statement that contains all relevant facts and addresses all legal issues. The complaint and answer or court orders can sometimes serve as adequate substitutes. I prefer to know as much about the case as possible before the mediation. I want to review the relevant contracts, expert reports, excerpts from depositions, emails between the parties, maps, case law and anything else that enhances my understanding of the case. This saves time and gives me a chance to develop appropriate mediation strategies ahead of time.
I sometimes call a lawyer before a mediation if I see something in a mediation statement that raises questions in my mind. However, I encourage lawyers to call or otherwise notify me, perhaps through a confidential addendum to the mediation statement, if they have anything they wish to discuss privately. Remember, this is a mediation, not an arbitration or court hearing, so ex parte communications are not a concern. Conference calls with both lawyers are also sometimes useful in identifying issues and making the mediation more productive.
Lawyers may want to tell the mediator privately, for example, about any physical or mental limitations the client has, or any difficult dynamics between or among any of the participants in the mediation. Is the lawyer having control problems because the client is personally difficult or has unrealistic expectations about the value of his case? A mediator may be able to convince a plaintiff that the settlement of a soft tissue injury claim from a rear-ender will not be substantial enough to guarantee a comfortable retirement, or get a defendant who routinely used sexist language to his female employees, even though “all in fun,” to understand that a jury will be offended by his behavior. Give the mediator a heads-up that her candid assistance is needed in getting the client to hear what his lawyer is saying.
When lawyers become overly involved in their clients’ cases, the opposite problem occurs.
Parties are naturally emotionally involved. Mediation provides them with the opportunity to express their anger, sadness, suspicions, feelings of betrayal and so on. My job is to listen to the parties and understand those feelings but eventually try to move them beyond their emotions and see their cases as a neutral third party, like a judge or jury would.
I ask them to make a “business decision,” and this task becomes herculean when lawyers themselves have become emotionally involved in the case. Lawyers should be compassionate and empathic, but they do their clients no favors when emotions cloud their judgment and interfere with their ability to assess cases realistically and advise their clients accordingly. Animosity toward opposing counsel also puts sound decision-making at risk.
Kathleen A. McGuire is a mediator and retired associate justice of the New Hampshire Superior Court.