The Mediator and the Advocate: Tips to ensure a winning team

By: David M. “Mac” Shelton | Mediator, Arbitrator

sheltonMediators rarely “do magic” single-handedly behind closed doors. Teamwork is the key to mediation success. The team is the advocate and the mediator. As the mediator, I can help you, the advocate, only if you help me. Give me leverage for the negotiations, since I can’t generate it out of thin air.

The Roles of the Teammates

What settles cases? I see a common thread after two decades of mediating many different types of civil cases: meeting the subjective expectations of each party. My main challenge is to firmly, gently, but steadily alter the expectations of each party. This process begins quite early in the mediation hearing.

How can you help me? Before the mediation hearing, “soften up” the resolve of the other side with a concise, surgically drafted pre-hearing letter. I want to be greeting your opposing party in his or her caucus room anticipating that he/she has now become more sober/realistic on the eve of mediation than in the months leading up to it. During the hearing, your letter’s compelling “selling points” (positives about your case and negatives about theirs) provide points for me to use with the other side. I can only be as effective as the arguments you hand me.

Tips for Writing the Mediator’s Pre-Hearing Letter

The letter serves three distinct purposes. First, its writing should crystallize in your mind the main selling points. Second, the other side will be more aware of your position after reading it; if well-written, the letter will alter the opposing party’s expectations from the outset. Third, the letter provides a basis for my own talking points to alter those expectations even more.

Address Your Letter to Me but Don’t Write It for My Eyes

The reader you’re trying to influence is the opposing party (and counsel), not me. Picture yourself as the wise old uncle/aunt dispensing needed advice. Put yourself in the opposing party’s shoes and imagine the messages he/she needs to receive and how they’re best packaged. Obviously, avoid being dismissive, condescending, patronizing, or inflammatory. Be as objective and detached as possible. A “confidential” letter to me is almost always a mistake, in my view, since it’s a missed opportunity to influence the opposing party. In a separate letter put confidential comments for me only.

Send Your Letter Early

The first reaction of parties and counsel to your letter is normally defensive. Don’t expect to hear, “I surrender, you’re absolutely right”, in response. But given more time to consider your points, the opposing party will likely become more receptive to them and will begin to consider more seriously the risks of trying the case. WAMS instructs you to send me your letter at least several days before the hearing, but I recommend sending it to opposing counsel at least 10 to 14 days before the hearing, whenever possible. I don’t need your letter that early, but the other side does.

It is absolutely necessary for corporations, insurance companies, and government agencies to have your letter early because their decision-making is just too complex, time-consuming, and multi-leveled to expect a reasoned response in just a few days, let alone overnight. You’d be surprised how often an adjuster gets a thick initial demand brochure for the first time only a day or two before mediation, which leaves no opportunity to get additional settlement authority. Individual parties, notably plaintiffs in tort and employment cases, also need the letter early, especially given the high expectations that their overly optimistic counsel may have created. He/she requires a few days for the “bad news” to sink in. It is vital for my work that individual parties get serious before  mediation, not just at  mediation.

Know, too, that in the other caucus room quite often there is a person associated with the opposing side who is actually fighting for what you want. In effect, you have an undisclosed third member of the team working for you. The best example is the insurance adjuster or HR manager who is eager to close a claim file by getting authority for an amount the plaintiff is thought likely to accept. But that third teammate’s effort will be frustrated by the failure of the plaintiff’s lawyer to get updated or necessary documentation and provide it well before  the mediation.

Another possible third teammate is the subrogation or lien holder. A reduction of the subrogated claim is often critical for settlement, but the lien holder must be educated in advance  if you expect significant action on mediation day. The lien holder can help in other ways, too. I’ve seen how the L&I rep’s insightful comments in both the defense and plaintiff’s caucus rooms significantly altered a party’s position and got everyone closer to settlement. That person can only be maximally effective if he/she is fully briefed about your case in advance of the mediation.

Build Your Letter with Bullet Points

Overly detailed and long narrative letters are seldom helpful. A simple two page memo listing bullet points was one of the most effective submissions I’ve ever received. The memo didn’t even have complete sentences. But it was easy to read, listed all selling points, and included references to attachments (copies of key portions of depositions, expert reports, etc.) which were yellow-highlighted for efficient reading.

Employ the following exercise before writing your letter: picture yourself with a colleague giving you just three minutes to summarize your case. You must be succinct, but comprehensive and compelling. After listing all of the points out loud, write them down – and only then – start writing the letter with the list as your outline.

The Bottom Line

If you’ve done good pretrial work, you’ve performed 75% of your role in generating the leverage I/you need at mediation. But if you’ve neglected discovery or other aspects of your case, your team will be very limited in what it can accomplish for you at mediation. The other 25% of your role comes in preparation for the mediation itself, especially by crafting a good pre-hearing letter. Consider every possible member of your team when drafting your letter and give each teammate the information he/she needs early  enough to help you settle your case.

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