Did You Know?

The advantages of a WAMS “short notice” mediation:

  • Easy access to the WAMS online calendar (www.usamwa.com) for mediator availability within the next 2 weeks.
  • No cancellation fee if you schedule within 2 weeks (not including the date of mediation) and need to cancel for any reason.
  • WAMS Case Administrators email confirmation notices for easy forwarding to clients.

Supporting the Lawyer’s Complex Role in Mediation

By: Kathleen Wareham | Mediator, Arbitrator

warehamMediation offers many benefits to clients, providing them an efficient, effective means of resolving their legal disputes. One reason mediation works is that it supports the complexities of the attorney-client relationship and helps lawyers satisfy their dual duties to both advocate for and advise clients about risks and benefits of settlement. When the mediation parties and their lawyers clearly understand the lawyer’s role and duties to the client during mediation, they can work more effectively with the mediator and fully utilize the mediation process.

Washington’s Rules of Professional Conduct, revised in September 2006, provide lawyers clear direction to consider social, emotional and economic consequences of litigation, as well as alternatives to litigation such as mediation. In fact, when a legal matter “is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”1

Multiple Roles for the Lawyer

The Preamble to the RPCs describes multiple roles for a lawyer representing a client: advisor, advocate, negotiator and evaluator. These roles may seem in conflict with each other. As an “advisor,” the lawyer “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” As an “advocate,” the lawyer “conscientiously and ardently asserts the client’s position under the rules of the adversary system.” As a “negotiator,” the lawyer “seeks a result advantageous to the client but consistent with the requirements of honest dealings with others.”2

A lawyer acts in all three of these roles in mediation. In both mediation and litigation, the lawyer is helping the client by advocating and asserting the client’s position. In mediation and in settlement negotiations, the lawyer takes on the negotiator role, to seek a result advantageous to the client, and as an advisor, to explain practical implications of a client’s legal rights and obligations.

Lawyers Must Give Candid, Straightforward Advice

The RPCs specify the duties expected of lawyers in their role as advisors.

“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”3

These non-legal factors are part of the lawyer’s assessment and advice because pure legal advice, in a vacuum, fails to fully meet the client’s needs. As described in Comment 2 to Rule 2.1 “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.”

The rules encourage client need-centered guidance and “candid” advice. Comment 1 to Rule 2.1 reminds lawyers of the standards they are expected to meet and of the importance of honest, straightforward advice, even when it is difficult to give. This comment provides: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

The comments acknowledge this is not always easy. The duty to advocate and assert the client’s interests complicates the advisory role even more. By providing broad advice, including consideration of moral, economic, social and political factors, lawyers can strike the balance and fulfill the duties to clients expected by the rules — both to assert the client’s interests through advocacy and also to give honest and candid advice.

Settlement Is a Client Decision

While the lawyer works to both advocate and advise the client toward resolution of a legal dispute, under Rule 1.2(a) the lawyer must be mindful of the fact that decisions concerning the objectives of the representation, the means to pursue the objectives, and the ultimate decision regarding settlement of a legal dispute, are client decisions.

The lawyer’s role is to advise the client regarding the possible objectives of representation, the potential means to pursue the objectives and the pros and cons of particular settlement options. Fulfilling these duties to the client is a complex task. The lawyer must remember that the client is the decision maker under Rule 1.2(a), but also remember to give the client complete, broad advice pursuant to Rule 2.1.

Mediation: An Ideal Forum

Advising the client about mediation as a means of pursuing the client’s legal objectives is not only encouraged by the RPCs, it is a way for the lawyer to strike the balance between giving advice, advocating for the client and listening to the client. Mediation supports these complex communication tasks for the lawyer. A professional mediator helps the lawyer give the client advice and yet abide by the client’s decisions regarding the objectives and means of the representation and the client’s ultimate decision regarding settlement.

The RPCs provide lawyers with ethical guidance for fulfilling the complex roles of both advocating for and advising a client. More than establishing ethical duties, the rules help promote resolution of legal disputes — the ultimate purpose of litigation — by defining the lawyer’s role as both advisor and advocate.

Perhaps mediation has become the paramount method of dispute resolution not just due to economic pressures and crowded court dockets, but because it best supports the tensions in the litigation process between lawyers’ dual roles as advocates and advisors. Following the ethical guidance of the rules when considering, preparing for and participating in mediation helps lawyers fulfill their duties to their clients and effectively resolve their clients’ legal disputes.

1 Comment 5 to Rule 2.1.

2 Preamble [2].

3 Rule 2.1.

Kathleen Wareham has been a panel member of WAMS since 2004. She mediates disputes, utilizing more than 20 years of legal experience in negligence, personal injury, civil rights, wrongful death, and complex probate, guardianship and trust matters. This article draws on material from Ms. Wareham’s chapter on “Washington Mediation Ethics” that will appear in the update to the Washington Legal Ethics Deskbook (Wash. St. Bar Assoc.) scheduled for release in January 2009.

Mediator Focus: Pat Duffy

By: Natalie Snyder | WAMS Staff

duffyThe path to becoming a professional mediator is somewhat unique for each member of the WAMS mediation panel. In the case of Pat Duffy, the opportunity to become a mediator came from WAMS in 2001, in the form of a request that he consider being trained to join the panel. Pat practiced plaintiff’s personal injury law in Tacoma from 1975-1992, then moved his practice to Sumner in 1992. He utilized mediation in his own law practice before ever becoming a mediator.

“Pat Duffy had been a WAMS client for many years, so the staff and mediators at WAMS had numerous opportunities to see first-hand what an exemplary lawyer and person he is. He always treated his clients, colleagues and support staff with the utmost respect and courtesy, so we hoped he would become a WAMS mediator as soon as possible,” according to WAMS President and House Counsel, Diane McGaha. “He’s just the kind of person you enjoy being around,” she says.

“Bringing people together” is what mediation is all about for Pat Duffy. As Pat says, “I like people, I like stories, and I’ve heard many good ones over the years. I guess that is part of my Irish heritage.” Pat got much of his professional inspiration from his father, a family doctor who practiced medicine for many years in Pierce County. Pat says his father encouraged him as a young man in ways that made him want to be a person who makes a difference. “I like to learn a little bit about the plaintiff and often ask about their background, family, education and work. This helps to put the person at ease, since walking into a formal office setting and meeting new people can be an intimidating experience for some.”

The challenges of the adversarial process and the different approaches taken by plaintiff and defense counsel are what keep Pat enjoying his mediation work. “I try to understand the issues and hopefully identify areas of agreement in order to resolve the dispute.” Pat’s favorite aspect of the mediation process is that “the result of a mediation is more predictable than a jury verdict.” As a mediation client himself, he also understands that “there are benefits to the clients and attorneys – one of which is minimizing the expense” of litigation.

During his off time, Pat enjoys traveling with his wife (Karen) to a warm spot to play golf. Pat and Karen have three adult daughters, Deirdre, Clare and Tory, who still live in the Puget Sound area. As an active member of the Sumner Rotary Club, Pat also enjoys being involved locally and internationally in support of schools and food programs.

Pat Duffy serves as a WAMS mediator and arbitrator with expertise in the areas of serious personal injury, employment, auto accidents and UM/UIM arbitrations.

“I like people, I like stories, and I’ve heard many good ones over the years. I guess that is part of my Irish heritage.” – Pat Duffy

 

A MEDIATOR’S GUIDE TO NEGOTIATING CLAIMS

By: Cynthia Morgan | Mediator, Arbitrator

morganA challenging aspect to any case can be the liens the mediator and lawyers must contend with before settlement can be achieved. Not only can the amounts affect the bottom line, and therefore the likelihood of settlement, but the lien must be dealt with according to the specific laws governing it. While there are many types of liens the injury practitioner will face, there are four main types of liens that we generally see in mediation 1 :

  1. Personal Injury Protection or PIP lien;
  2. Private medical coverage, i.e. Regence or provider liens;
  3. DSHS or Medicare; and
  4. Labor and Industries.

While the first is most common with your average auto collision case, being prepared to deal with the other three can save headaches in the last hour of your mediation. Deciding whether to have a representative present or available at the mediation is case specific and also depends on the statutory requirements for reimbursement and reduction of liens.

It is well established in Washington that insureds are not entitled to double recovery, and thus after an insured is “fully compensated for his loss,” an insurer may seek an offset, subrogation, or reimbursement for benefits already paid. Thiringer v. Am. Motors Ins., 91 Wn.2d 215 , 219, 588 P.2d 191 (1978); see also Hamm v. State Farm Ins. Co., 151 Wn.2d 303 , 309, 88 P.3d 395 (2004); Safeco Ins. Co. v. Woodley, 150 Wn.2d 765 , 770, 82 P.3d 660 (2004); Winters v. State Farm Ins. Co., 144 Wn.2d 869 , 876, 31 P.3d 1164 (2001) (“the insured must be fully compensated before the insurer may recoup benefits paid”); Mahler v. Szucs, 135 Wn.2d 398 , 407, 957 P.2d 632 (1998).

(1) PIP LIEN OR RIGHT TO REIMBURSEMENT

The PIP lien is contractual and thus the policy must be considered first. Most insurance adjusters are quite familiar with litigation and mediation and thus negotiating this lien is typically straightforward. The right of reimbursement may be enforced as a lien against any recovery the insured secures against a third party; alternatively, the insurer, standing in the shoes of the insured, may pursue an action against the third party. Mahler,  135 Wn.2d at 413. See also Meas v. State Farm . 130 Wn. App. 527 (Property damage reimbursement can be exercised before the issue of injury resolved, is not dependent on the insured being made whole, and insured is not entitled to insurer paying pro rata share of his attorney fees).

(2) PROVIDER LIENS & PRIVATE MEDICAL INSURANCE PROVIDERS

While not truly a subrogated interest, it is important to know the full extent of provider liens the plaintiff is facing. These can also affect the possibility of settlement. RCW 60.44.010 provides for medical care liens on personal injury suits, but requires they be perfected by filing a notice of the claim with the county auditor. Also keep in mind that total medical liens cannot exceed 25% of the total verdict or settlement.

Private medical insurers are also subject to a Mahler reduction or a pro rata sharing of fees and costs. Winters v. State Farm Mut. Auto. Ins. Co., 144 Wn.2d 869 , 876, 31 P.3d 1164 (2001).

(3) DSHS & MEDICARE

In auto cases, DSHS has a statutory lien pursuant to RCW 74.09.180 and RCW 43.20B.060. (No lien on wrongful death cases where there are surviving dependents) 43.20B provides for the lien, but also dictates that DSHS shall bear a proportionate share of attorney’s fees and costs. The mediator and attorney should be aware that DSHS only pays a contractual rate or portion of medical bills. Should the providers attempt to collect the balance, WAC 388-87-007(3) should be reviewed. This section states that a provider’s acceptance of DSHS benefits is payment in full.

A Medicare lien is allowed by 42 USC 1395(b)(2) and 42 CFR 411.50. This lien is also reduced for reasonable attorney fees and costs. In addition, 42 USC 2652 (b) allows the United States to waive all or a portion of the claim if it is determined the collection will result in undue hardship upon the person who suffered the injury or disease. The lien may also be reduced if it can be shown that the treatment received was required regardless of the accident.

(4) L & I

A Department of Labor & Industries lien attaches to any recovery by an injured worker against a third party if the Department has paid worker’s compensation benefits. RCW 51.24.060(3) further provides that the Department or self-insurer has sole discretion to compromise the amount of its lien. In deciding whether or to what extent to compromise its lien, the department or self-insurer shall consider at least the following:

(a) The likelihood of collection of the award or settlement as may be affected by insurance coverage, solvency, or other factors relating to the third person, 

(b) Factual and legal issues of liability as between the injured worker or beneficiary and the third person. Such issues include but are not limited to possible contributory negligence and novel theories of liability; and 

(c) Problems of proof faced in obtaining the award or settlement.

Courts have universally upheld the department’s right to consider other relevant factors when deciding whether to compromise its lien. Hadley v. DLI , 116 Wn.2d 897(1991).

Any settlement of a third party action by an injured worker which results in the worker receiving less than the statutory entitlement is void unless made with the written approval of the department or self-insurer. Boettcher , 35 Wn. App. 178, 665 P.2d 1378 (1983). See also Kinsman , 44 Wn. App. 174, 721 P.2d 981 (1986). Further, Department of Labor and Industries’ right of reimbursement for industrial insurance benefits paid be reduced in proportion to the employer’s or co-employee’s share of fault. Clark v. PacifiCorp . 118 Wn.2d 167 (1991). Third party actions also include underinsured motorist claims.

In situations where the decision to reduce or waive is purely discretionary, it is very important that the assigned claims adjuster is apprised of any liability or damage issues prior to the session. If possible, it is most helpful to have the adjuster present at the mediation. It can be helpful to have the adjuster speak with the attorneys face to face to hash out issues in a case and to see evidence, documents, witnesses, etc. that can affect the value of the case and lead to a compromised settlement of the lien. As a mediator who has seen cases fail to settle due to a lien holder’s unwillingness to compromise, I firmly believe face to face discussions about the case strengths, weaknesses and chances at trial are far more effective.

1 ERISA benefits must also be recognized, but a detailed discussion is Continued on Page 3 far too lengthy for this article.

What Makes a Good Mediator?

By: Margo Keller | Mediator, Arbitrator

keller“You mediators have the life,” the defense attorney says to me as he leans back into his chair for our first caucus, “No stress, and let’s face it, it’s just not that hard to settle a case.”

I nod in my friendly way. Noncommittal.

Then he tells me he’s “Really sorry” but his client won’t give him any settlement authority because “the plaintiff’s demand made his client “hopping mad.” “Sorry,” he says again as I leave the room, “but she feels really strongly about this one.”

I move over to the Plaintiff’s conference room where the attractive, athletic-looking claimant nods helpfully as her attorney tells me that, because of the accident, she can no longer paraglide, and that her damages are “clearly in the six figures.” He does agree with defense counsel that he has not named a causation expert within the court deadline, but “he’s not worried about that.”

I nod again. For now anyway, I am noncommittal.

Although this example may seem unbelievable or at least humorous, mediators are presented with cases like this all the time. They seem impossible and yet they settle. Why? How? In my opinion, tough cases settle because, at least in part, a good mediator brings to the case a special set of personality traits and skills that help the parties achieve settlement.

A MEDIATOR’S PERSONALITY

  • Objectivity. Unlike pure lawyers, mediators are not advocates, except for the process itself. Quite simply, a good mediator cannot have a “bent“: plaintiff or defense, employer or employee, etc. A mediator needs to help each side evaluate the strengths and weaknesses of the case, serving as a neutral but trusted “devils advocate”. It’s a fine line and often I find myself warning parties that the next time I come into the room they may think I am “not on their side”. Instead, I am doing what they are paying me to do: present risk in an objective fashion. For example, what happens to the plaintiff’s case if the judge excludes the expert witness not identified in time?
  • Highly intuitive. A good mediator easily reads verbal and non-verbal cues and can often simply “sense” what approach will be most effective. I sometimes think this is a personality trait one is born with, however, these skills can be honed with experience and attention.
  • Patience. Trust me on this one.
  • Persistence. Probably one of the greatest mistakes parties or less experienced mediators make is giving up too easily. The good mediator sticks with you.
  • Respects and Genuinely Likes People. I think this is critical. You know when someone has positive regard for you. A good mediator believes all kinds of people are worthy of time and empathy and frankly, enjoys everyone’s “story.”
  • Trustworthy. It is fundamental to the mediator-party relationship that if requested, the mediator can be trusted with anything from a deep confidence to a random thought. Moreover, the mediator must be trusted to communicate the strength of a settlement offer or the complexity of a multi-faceted position.
  • Sense of Humor. Many of the folks who attend a mediation have suffered a real loss or are seriously stressed from the litigation process. Although they may not admit it, many attorneys who attend the mediation are also worried or exhausted or stressed out about the case. (I often was.) A little well-placed humor can ease the situation. It can help the parties understand that yes, this process is much nicer than going to trial, and that after all, life will go on after this case ends.

A MEDIATOR’S SKILLS AND KNOWLEDGE

  • A quick study. A mediator must be smart in that facile, “quick study” sort of way. The mediator must be able to grasp the facts of the case quickly and more importantly, be able to clearly identify the legal and people issues involved. In my opinion, the depth of a mediator’s knowledge of a particular area of the law is often overrated as a factor when selecting a mediator, however, it is obviously important that the mediator have a good general understanding of the particular law in the case at hand. It is also helpful to have a mediator who has tried cases to both a jury and the bench. This depth of trial experience can assist the parties in analyzing the strength of legal arguments, factual positions, and those emotional appeals everyone loves to rely on.
  • Balanced orchestration of the mediation process. This skill comes with experience, intuition, and training. A good mediator knows when to be reflective, when to test a party’s sense of reality or the risks in litigation, and knows when to discourage explosive demands or moves. This is critical: a good mediator knows that settlement expectations are not lowered quickly, and that the process takes some time.
  • Good verbal and listening skills. A good mediator can do both: listen and talk. I wouldn’t be able to settle my fictionalized “hurt paraglider” case without first learning about the plaintiff’s magazine contract for a photo spread, and I would definitely need to listen to the way in which the plaintiff communicates about the accident and her needs or losses in order to deliver those impressions to the defense. Occasionally, I have passed on a fact that one or the other attorneys had simply forgotten since the case was filed, which fact was critical in properly evaluating the risks in the case.
  • Creative Problem Solver. This is my favorite skill. A good mediator has initiative and the confidence to use it. A good mediator can think “outside the box.” I love the fact that solutions not allowed in a court process can be successfully implemented in a mediated settlement. A good mediator asks the parties about ways to reduce taxes, structure settlements, meet non-monetary needs, narrow issues and agree on a dispute resolution process for future disputes. Just to name a few ….
  • In sum, a good mediator does far more than walk back and forth between rooms and deliver “numbers.” A good mediator creates a sufficiently safe but realistic environment to help you evaluate the risk of trial against a proposed settlement offer. Finally, a good mediator allows the attorneys and clients to leave the mediation with their self-respect intact.

Hey, if it was easy, anybody could do it!

 

Mediator Focus: Cliff Freed

By: Penny Gans | WAMS Staff

freedCliff Freed, in jeans and a polo shirt on a non-mediation day, is a down-to earth, focused listener who would immediately put any client at ease. Cliff joined the WAMS arbitration/mediation panel in 1996 after completing mediation training at the University of Washington. A specialist in employment-related disputes, Cliff maintains an active law practice and has been a partner in the law firm of Frank, Freed, Subit, Thomas since 1986.

According to Cliff, modern employment law has grown out of the civil rights acts of the 1960’s and subsequent legislation such as the 1990 Americans with Disabilities Act and the 1993 Family Medical Leave Act. Cliff and his partners represent employees, labor unions, small business owners, and non-profit organizations in cases involving discrimination, harassment, wage and hour disputes, and disability rights. Cliff’s clients have ranged from the ousted CEO of a large hospital chain to a female police detective being harassed by her superior to the owner of a small day care facility who prevailed in a dispute with DSHS and is now the successful owner of six day care centers. Today, Cliff’s work as a WAMS neutral comprises roughly 20% of his practice.

Cliff believes that patience is an essential tool in mediation. Because emotion plays such a large part in employment disputes, the mediator must take the time to allow both sides to completely air their views. “Employment is a relationship not unlike a marriage,” explains Cliff. “People have an incredible emotional investment in their jobs and self-image is often based on the job. It is an especially traumatic event to lose a job, especially if the employee’s reputation is hurt.

Employers can be emotional too, believing they have been unfairly accused or that their efforts to address the employee’s concerns have been ignored – that ‘no good deed goes unpunished.’” In spite of the emotional elements of the cases, however, fewer than 5% of employment disputes go on to litigation. Nevertheless, at the end of a mediation Cliff often hears one of the attorneys say, “I never thought this case would settle.”

Cliff‘s journey from Brooklyn, New York to Seattle and WAMS illustrates the happy results of accepting adventure, excelling at new challenges, and being in the right car pool at the right time. After growing up, graduating from college and beginning a teaching career in Brooklyn, Cliff made a summer visit to a friend who was bar-tending in a Pioneer Square tavern. After ten days of hiking and Seattle sunshine, Cliff returned home, re-packed his bags, and came back to join his buddy in the bar-tending business. He later managed the tavern (music seven nights a week), worked as a DJ and sports reporter for a Seattle radio station, took the LSAT, and graduated cum laude from UPS Law School (now Seattle University), where he was Managing Editor of the Law Review. Cliff found his future law partners through a fellow student in his Seattle-Tacoma car pool and met his wife, Eileen, on a blind date arranged by her mother, another Law Review member.

Among his many other activities, Cliff lectures part time at SU Law School and is Chair of the Labor and Employment Law Section of the King County Bar Association. He serves as a member of the Federal Pro Bono Screening Committee and is on the Board of The Homelessness Project, a non-profit agency providing transitional housing for homeless families in Seattle. Ten years ago, Cliff also discovered golf. He and his golfing group enjoy playing at many area courses and are looking forward to a trip to the British Open next year.

Mediator Focus: Tom Harris

By: Penny Gans | WAMS Staff

harrisTom Harris is the newest member of the WAMS panel, but he’s no ordinary rookie. Like the Mariners’ “rookie” Ichiro a few years ago, Tom comes to WAMS with a highly successful past career, an extensive fan club, focus, discipline, and an infectious enthusiasm for this new stage of his life.

Tom has been a trial lawyer in Washington State for 33 years, representing thousands of plaintiffs and defendants. In 1995 he published Washington Insurance,  a 60-chapter textbook, now in its second edition. His reputation as an expert in insurance law resulted in his appointment as mediator for the 2001 Anacortes refinery fire case and, shortly thereafter, the Olympic Pipeline explosion. After tenacious post-session follow-up, both cases settled. Tom’s success with these complicated cases generated a steady stream of new ADR opportunities and led to conversations with his friend, WAMS panel member Larry Levy, about a career transition from litigator to full-time neutral. Tom hit the ground running at WAMS in January 2007.

Although he always enjoyed trial work, Tom feels that acting as a neutral is “the highest and best use of my experience so far.” He understands trial lawyers and their clients, and his trial experience helps him to know how judges and juries are likely to react to a case. He enjoys getting into the issues with lawyers and having the opportunity to see both sides of the case. Tom likes “getting case materials that have been all worked up so that the issues are clear. The cases are generally interesting, and I like seeing a new case every day.” He also believes that “people should consider mediating sooner, before lots of money is spent. The core of the case is usually the same from the beginning, and mediating before a case is filed is better economically for the plaintiff.” Preparation and follow-up are keys to Tom’s success. He goes through the case materials at least twice, distilling the key issues for each side. If the initial mediation session doesn’t result in settlement, Tom follows up with the parties as long as there is any possibility for agreement.

Born in Greenwich Village in New York City, Tom did his undergraduate work at Harvard and graduated from Cornell Law School. He fell in love with the idea of the Pacific Northwest via TV, while watching a UW football game one beautiful Seattle fall afternoon. Diploma in hand, Tom packed his bags and came West, joining Seattle firm Merrick Hofstedt & Lindsey as employee number six. “The partners were like three fathers to me,” according to Tom, “and in those days the young guys actually got to try cases. The 70’s and 80’s were a golden age of trial work in Seattle, and I loved the lawyers and the story-telling.” Tom met his wife, another transplanted Easterner (a “Maine-iac”) in Seattle. Their 25-year-old son is a Wharton graduate and has recently begun a Wall Street career. Tom and his wife are about to begin building a summer house on family property in Maine, so they are frequent fliers to the east coast.

Tom loves his work as a neutral. “Lawyers are fun! I like all sizes of cases and get as much satisfaction from the small ones as from those involving many parties. In fact, I feel I can do more good for people in the smaller cases. Working with WAMS lets me have an impact on many more cases than was possible in my litigation practice.” Luckily for WAMS and Tom’s clients, Tom’s daughter is just beginning law school in Boston, so he also has a financial incentive to keep making that impact for years to come.

“Although he always enjoyed trial work, Tom feels that acting as a neutral is ‘the highest and best use of my experience so far.”

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.