Mediators want high “batting averages”–i.e. a very high percentage of mediations which successfully resolve all matters in dispute. As a mediator so do I, and there is nothing more frustrating to this mediator than a mediation which fails because the lawyers have failed to recognize outstanding legal issues and how the resolution of those issues affects the “value of the case.” In such circumstances, a lawyer cannot perform a litigation risk and cost analysis which is a necessary predicate to a successful mediation. Furthermore, the lawyer has probably given the client an unrealistic evaluation of various claims making it difficult to successfully mediate the case. And when several of the lawyers participating in the mediation have given their clients unrealistic evaluations, it is almost impossible to have a successful mediation. How do I as a mediator attempt to overcome the problem of unresolved legal issues?
First, as soon as I am retained I attempt to obtain as much information as possible. I immediately request copies of all the pleadings and all briefs which have been filed in support of motions. I then schedule a telephonic conference to uncover outstanding discovery issues. At the telephonic conference I set a firm date for the submission of confidential mediation statements, and analyze them as soon as received. After analyzing all this material I make an initial decision whether to handle the mediation in a facilitative style or an evaluative style or a combination of both.
Using a purely facilitative style a mediator tries to assist the parties in identifying and exploring interests, motivations, concerns, common ground and possible resolutions. But, a mediator using a purely facilitative style does not draw conclusions for the parties. The mediator does not offer opinions regarding legal positions or potential litigation outcomes. Unfortunately, a purely evaluative style cannot result in a successful mediation when there are outstanding legal issues which have not been considered by one or more parties in making a litigation risk and cost analysis.
Instead of using a purely facilitative style I gently pursue an evaluative style. In an evaluative style a mediator is likely to offer opinions on the strengths and weakness of the case. But, I approach this evaluative style very gently. After I discover a serious unresolved legal issue I generally write counsel and tell them that I have discovered a case or a line of cases which may affect the mediation process and ask for counsels’ opinions. Or, I may request that counsel provide me with case law that supports an important legal position. However, only when the parties to the mediation process believe that my opinion is necessary will I provide an opinion.
I try by using a modified facilitative approach to encourage the parties to consider the subject of unresolved legal issues and make realistic litigation risk and cost analyses before the day of mediation arrives. Settlement is then much more likely. And, SETTLEMENT is what I seek.