Ready to Resolve: Preparing for Your Next Mediation

On March 30, 2023, Kyle-Beth Hilfer spoke for the Westchester County Bar Association on a panel entitled: “Ready To Resolve: Preparing for Your Next Mediation.” Ms. Hilfer discussed best practices for litigators preparing for mediation. This blog contains some of Ms. Hilfer’s comments.

Q. When attorneys contact you for a potential mediation, what questions do they ask and what questions do you wish they asked?
A. Attorneys often ask about my industry and legal expertise, my style of mediation, and logistics. I wish they asked some of the following questions when preparing for mediation:
• Do you offer pre-mediation calls? (Answer: yes, always! Some cases require multiple rounds of calls. )
• How do you prepare as the mediator? (Answer: extensively. I want to know as much about the case as you do.)
• How does your work as an arbitrator inform your approach to mediation? (Answer: it allows me to offer evaluative advice when solicited by both parties, usually in caucus.)
• Could you explain the confidentiality of the mediation? (Answer: the applicable law may or may not provide confidentiality as the default setting. In addition, the mediation agreement I ask parties to sign establishes the confidentiality of the proceedings. There are rare exceptions. The Second Circuit, in In re Teligent, Inc., upheld the confidentiality of mediation and identified a difficult three pronged test that must be satisfied for discovery of otherwise non-discoverable documents.
• Do you draft the settlement agreement? (Answer: not usually, but sometimes terms sheets or summaries.)

Q. Are pre-mediation statements necessary and what should they contain?
A. Yes, I request pre-mediation statements. Sometimes there is a joint exchange where the dispute is fairly new. Confidential pre-mediation statements are often more valuable when preparing for mediation. These should not be a restatement of court submissions. Instead, your confidential statement to the mediator should be a relatively short discussion of any or all of the below:
• What is your client’s story? Yes, I want to know the case facts and legal issues. But I also want to know who is your client? What motivates your client? How is this case affecting your client’s business and personal lives? How are they reacting to the pressure of litigation? What concerns will they bring to the mediation table?
• What do you and your opponent agree on, even if it’s that you disagree about certain items?
• What is your confidential assessment of the weakness of your case and the strengths of the opposing side’s case?
• What is your relationship like with opposing counsel?
• What settlement efforts have there been and why/how have they resulted in impasse?
• What intangible litigation costs does your client have? What is their budget for resolving this dispute?
• What might be your goals for settlement or do you see a zone of possible agreement?
• What might your client seek besides money (e.g. a refashioning of a continued relationship? Payment in kind?
• Does your client have any strict policies on settlement or any standard form of settlement? If so, share with me before the mediation.

Q. How should attorneys prepare for mediation with you?
A. Attorneys should prepare extensively for the mediation day and do so differently from the way they prepare for court. Here are some, but not an exhaustive list, of items to consider. If attorneys do the work to prepare, they can participate and thrive in mediation.
• Sit with your client and evaluate your goals and rank them. Consider your BATNA/WATNA.
• Identify what information you will share with the mediator and what you will share with the other side.
• Consider who will attend the mediation from the client. It may be your client’s in-house counsel, or perhaps it’s a client executive. Maybe you need the business team represented. Maybe you need several representatives to attend. Consider discussing this issue with me as the mediator in advance. I may have useful advice as to who would facilitate the mediation discussion most effectively.
• If there will be an opening statement (you will have discussed this with me), prepare one for mediation, not court. You are really speaking to the other party in the dispute more than to opposing counsel, and there is no fact-finder.
• Consider whether you want me as the mediator to be evaluative.
• How can I can assist you with a difficult or intransigent client?
• How can you move from an offer/counteroffer settlement style to one that expands the pie to be divided?
• In what way can I, as the mediator, help you or your client to progress negotiations?

Q. How should attorneys prepare their client for mediation?
A. Here are the three most important things you can discuss with your client ahead of time.
• Prepare your client to trust the mediation process and me as the mediator. Explain joint sessions and caucus. Prepare the client to hear things they do not agree with or that are maybe outrageously wrong from the other side. Assure them that my goal as the mediator is not to split the baby or even to force resolution where it is not in the client’s best interests. Explain that I will push the other side in its own caucus as much as I will reality test and probe in the client’s caucus.
• Consider carefully the client’s opening number. How do you think it will be received? What is its purpose? What is it trying to convey to the other side? If your client has budget concerns about the cost of mediation, consider how the opening number will build momentum?
• Discuss with your client how to be a genuine participant in the mediation, making proposals that generate movement as opposed to anchoring to one position that could derail the process. Of course, sometimes, there is a reason to anchor. If that’s the case, how can you explain that to me as the mediator, and what can I share with the other side?

Do you have a case that might be a candidate for mediation? Learn more about Kyle-Beth Hilfer’s mediation practice and philosophy here. Contact Ms. Hilfer here.