by Andrew Flake
This past weekend much of the country experienced a winter storm, ranging in effects from snow, to freezing rain, to extreme cold. In all cases, a major concern was losing power, which meant what is for many of us, a household ritual: the collection of supplies.
We gather candles, matches, lanterns, flashlights, reading lights, chargers, heaters, and then for good measure, head to the store, only to be surprised when staples are in short supply. This weekend in Atlanta, for example, owing to especially dire predictions of extended power outages, there wasn’t a propane canister to be found anywhere in the metro and even normally plentiful aisles of batteries were barren.
Which got me thinking: In the busy and deadline driven world of litigation, how often do we step back and assess long-term preparation, especially when it comes to negotiation and settlement? Good trial lawyers know to “begin with the end in mind,” thinking of trial to guide pleading and discovery. But how often do we take the same time, and give the same consideration, to the possibility of mediation?
In the mediation room, the equivalent of this weekend’s winter storm is an impasse, the end of negotiation, one or both party’s unwillingness to negotiate further, a breakdown of discussion. And just as we prepare for a winter storm, taking steps to avoid a loss of power, both advocates and mediators can take steps early, setting up the best conditions for continued discussion and ultimately resolution, and adapting to the dynamics of an individual negotiation.
For the advocate, that means early case assessment and laying up some “settlement supplies” at the outset of a case. A senior lawyer I worked with always, when opening a file, create a trial notebook and a settlement folder at the same time. That is easily accomplished, and whether it is a folder, a notepad, or a Word document, settlement materials should be regularly updated. Include
(i) a list of the key disputed legal and factual issues in the case;
(ii) a list of or links to the key information pertinent to those claims;
(iii) a list of any information still needed to sufficiently value the case (to guide investigation and discovery) and
(iv) a damages calculation, including an expected reasonable high, middle, and low range.
The latter range of damages is an assessment tool we use in Early Dispute Resolution (EDR): The parties develop a reasonable set of values from lowest to highest, thereby avoiding the tendency for both the lawyer, and the client, to anchor to a less-than-realistic “best case” value.
At our house, we have a box of the various lighting implements and power sources we use if the lights go out, making it easy to lay everything out quickly. In the same way, an organized settlement file, with at least the four sections I mention above, will translate well into the information a mediator will want, including as part of a mediation statement, and the analytical tools the lawyer will need to advance the negotiation.
As the mediator, while we sometimes have to move and schedule very quickly, there are also preparations I know will increase our chances of a solid and principled settlement for the parties. That certainly includes working in advance of our mediation with counsel to understand the facts and issues in their case, and it includes making sure the parties are on the same page ahead of time with some key aspects of the case.
For efficiency, I will often conduct a pre-mediation call with both lawyers and parties to make sure there are no surprises the day of mediation, which means reviewing together:
(i) what are the issues and claims to be mediated;
(ii) what information do the parties reasonably need to assess the claims and damages (not the universe of information, but rather, the necessary and sufficient information);
(iii) will we have decisionmakers with full settlement authority in person or, as may be the case where the insurer is involved, accessible throughout the day;
(iv) timing expectations, including what “hard stop” time the parties anticipate;
(v) what general view of case value the parties have; and
(vi) what settlement discussions have occurred and offers, if any, exchanged to date, and who will be making the next proposal.
For the latter two items, my goal is to make sure, where possible, that neither party arrives a mediation surprised, although they may not agree with it, at an offer or general view of case value held by the opposing party.
So if you haven’t done so recently, create or update a case settlement analysis along the lines I’ve described, and carve out some time to discuss it with your client.
You’ll surely be glad that you did. These preparations, on the advocate and on the mediator side, are designed to ensure not just that we’re ready for mediation, but that in the mediation room — while we work through the mediation process to resolution, continuing to listen, to engage, and to negotiate respectfully and pragmatically — “the lights stay on” through a final settlement. ABF