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There are steps, sometimes overlooked by mediators and attorneys, that can be taken outside the mediation session to help ensure that a settlement is reached. By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed. Here are steps during the pre-mediation stage: 1: Get the right mediator. 2. Draft the mediation rules. 3. Have an informal pre-mediation get-together. 4. Make the dispute "mediatable." 5. Identify the person who must approve of the settlement. 6. Deal with logistics. 7. Prepare pre-mediation statement. 8. Emphasize good faith commitments. Here are post-mediation options when the mediation does not end in complete settlement: 1. Document all agreements reached in mediation. 2. Facilitate ratification. 3. Create a decision maker. 4. Offer proposals. 5. Schedule additional mediation sessions. 6. Keep in touch.

There are steps, sometimes overlooked by mediators and attorneys, that can be taken outside the mediation session to help ensure that a settlement is reached. By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed.

PRE-MEDIATION:WHAT PARTIES AND COUNSEL CAN ACCOMPLISH WITH THEMEDIATOR

Step #1: Getting the Right Mediator

a. Interview the mediator

Counsel can and should interview prospective mediators. The AAA has a fine roster of neutrals who are highly qualified as mediators. Each possesses different skills and backgrounds.

Each side should determine what talents the mediator needs to have for their dispute. Technical knowledge? Legal experience? Financial expertise?

The AAA provides information to the parties about the mediator's qualifications and experience. The interview, which can be done ex parte, is essential as it can also reveal a lot about the mediator's style and approach.

During the interview, counsel should observe the mediator to see if he or she is a good listener. Does the mediator seem interested and enthusiastic? Does he or she inspire confidence?

Counsel should ask the mediator about his or her approach to mediation. Is the mediator willing to offer an evaluation and suggest possible settlement options if asked? The mediator can also be asked how he or she deals with displays of emotion during mediation?

b. Consider having co-mediators

There are instances where employing two mediators should be considered. Candidates for co-mediation are cases involving multiple parties, large numbers of items in dispute and parties whose roles in the disputes show significant differences in their backgrounds and the manner in which they would evaluate settlement options.

If the parties are considering co-mediation, counsel should ask each prospective mediator about his or her experience with co-mediation. To be effective, a co-mediator must be willing to share mediation authority with another mediator.

Step #2: Drafting the Mediation Rules

A written mediation agreement should contain the parties' and the mediator's common understanding of the ground rules for the mediation. Even where the mediator has a standard mediation agreement, counsel may want to include additional terms.

The mediation agreement should do the following:

a. Comply with state law and bar association rules

As mediation becomes more common, states are enacting laws to govern its use. The mediation agreement should comply with state law and bar association rules governing mediation in that jurisdiction. Some states require mediators to obtain a signed acknowledgment from the parties in advance of the mediation evidencing their understanding that the mediator is not acting as legal counsel. These rules say that the mediator cannot provide legal advice. In Virginia attorney mediators cannot express opinions about the merits of the disputes unless the parties have agreed in writing, in advance, that the mediator may do so.

b. Deal with confidentiality

There are two aspects to confidentiality that need to be addressed: the mediator's obligation to maintain confidentiality and the parties' ability to use information gained in the mediation.

The mediation agreement should clarify that the mediator will keep confidential the information and discussions. It should also address whether the parties will be bound not to reveal their settlement efforts to others outside the mediation and whether they can use information obtained in the mediation for other purposes. If the mediation results in a settlement, similar terms may be included in the settlement agreement, but provision must be made for some disclosure in the event enforcement or use of the settlement in court or arbitration is necessary.

c. Provide for pre-mediation contacts

Counsel for the parties as well as the parties themselves should understand that prior to the actual mediation session, the parties may have ex parte contacts with the mediator, and provide the mediator with written materials in order to advance the mediator's understanding of the dispute. It is a good idea for the mediation agreement to be clear on these points.

People who are not familiar with mediation may find these communications with the mediator disconcerting. But it is standard practice. Mediation encourages candid communications so that the mediator will be able to facilitate negotiations between the parties.

d. Additional provisions

It may be helpful to include a statement in the mediation agreement that each party commits to participate in good faith. Referring the parties to this signed commitment could provide the mediator with a means to refocus the parties on common goals should the mediation stall because of lack of commitment or the reluctance of decision makers to participate in the process.

Step #3: Have an Informal Pre-Mediation Get-Together

Some mediators have adopted the practice of meeting informally with the parties, without their counsel present, before the mediation in order to establish rapport with parties. They may arrange a breakfast prior to the start of the mediation or dinner the evening before. Discussion of the dispute is forbidden. Some mediators report that this personal contact builds trust and helps the parties regard each other as individuals rather than adversaries.

Step #4: Make the Dispute "Mediatable"

Making the dispute "mediatable" means ensuring that the parties have the information they need to proceed to negotiate a resolution of the dispute.

When mediation is conducted early in the litigation process, discovery usually has not been completed. Thus, the parties may want to obtain documents from each other or depose witnesses in order to prepare for the mediation. Significant legal issues may also need to be disclosed and researched.

The mediator should work with the parties to determine what must be accomplished prior to the mediation so that the parties do not have the excuse of surprise.

Step #5: Filling Empty Chairs

There are two necessary categories of participants at the mediation: (1) persons with authority to settle, and (2) persons with direct knowledge of the facts. Having them all attend the mediation session is not always possible. Fact witnesses may be unavailable and the decision maker may be a committee or the party is a government.

The absence of a decision maker must be overcome. Early in the pre-mediation process, the mediator must encourage the parties to identify the person who must approve of the settlement. The mediator should:

a. Explore with the parties the ways to involve that person or an authorized committee representative. Can he or she be called upon to attend in person at some point? Is the committee member available by telephone?

b. Figure out whether the mediation can reach any success with an empty chair. If not, it may be necessary to reschedule the mediation.

c. Carry on regardless. If the parties and counsel are willing to proceed without the decision maker, there may be sound reasons to go forward anyway. Perhaps the party whose decision maker is absent has authority to proceed up to a point and then make a solid settlement recommendation that the decision maker would likely follow. A party may be using an absentee as a tactic to force the other party to make his or her "best" offer, which would then be subject to revision after the absentee decision maker steps in to review it.

It is also possible that the parties have not accurately identified the people they need in attendance. To start, the mediator should find out who the parties want in attendance. The purpose is more than making sure that those with knowledge and/or authority are present. In some cases, there are people who should not be included as they may pose an obstacle to settlement. There is also the issue of crowd control. Too many negotiators can lead the discussions into tangents that are not essential to a settlement. Confidentiality may be a concern. Trustworthiness or future relationships could be jeopardized by someone's presence. The privacy of mediation means more than ensuring that the sessions are confidential.

Step #6: Deal with Logistics

a. Scheduling for multiple parties

When there are multiple parties to a mediation, it is especially important for the mediator to address how their claims will be presented and to whom. Attendance at the mediation should be scheduled to minimize the amount of time that parties are waiting their turn to caucus with the mediator.

b. Strategic scheduling

Breakthroughs in mediation often occur just as the parties are wearing down and are ready to end the sessions. The mediator should schedule at least one full day of mediation and resist all attempts to schedule only a half day. All participants need to know, in advance, that they may need to stay into the evening or continue the following day.

Mediators attribute the success of mediation to the intensive effort of time that is expended by the participants. An important pre-mediation advisory emphasizes that the use and amount of time spent should be determined by the mediator.

In multi-party construction cases, subcontractors and suppliers often have discrete claims that can be presented separately from the rest. Separately scheduling their appearances. makes the mediation fairer to them. A beneficial side effect may be to chip away at the global claims postures of the major players.

c. Ideal location

For most mediations, the ideal location is neutral territory where there are separate rooms available for joint sessions and caucuses, and the parties have access to audio-visual equipment, copy machines, word-processing equipment, and secretarial assistance. In select cases, it may be helpful to meet at the project site or at the offices of one of the principals.

Mediation can be made more difficult when held at a location with no restaurant nearby, or in windowless, airless rooms. People under the stress of intense negotiations can benefit from a change in scenery once in a while. Cases can resolve more readily if the disputants can take a quiet break, even a walk around the block.

Step #7: The Pre-Mediation Statement

The AAA contemplates that parties will prepare pre-mediation statements for the mediator. AAA Construction Mediation Rule 9 (Identification of Matters in Dispute) provides:

At least ten days prior to the first scheduled mediation session, each party shall provide the mediator with a brief memorandum setting forth its position with regard to the issues that need to be resolved. At the discretion of the mediator, such memoranda may be mutually exchanged by the parties. At the first session, the parties will be expected to produce all information reasonably required for the mediator to understand the issues presented. The mediator may require any party to supplement such information.

In some cases, the statements are an unnecessary burden. Counsel should consider what information would be helpful to the mediator and the form that information should take to be efficiently presented. A brief narrative of the dispute along with key documents may be sufficient. The parties should have no reservations about exchanging these materials.

Personalized statements that reflect on the parties' relationship, their past negotiations, their expectations of settlement, and the obstacles or opportunities they view as integral to the mediation discussions are more sensitive. The mediator should assist the parties in reaching mutually agreeable decisions about what information will be provided and whether these statements will be exchanged. The mediator's facilitation of this part of the process can result in pre-mediation statements that are more fitting for the dispute.

Step #8: Good Faith Commitments

The parties' commitments to mediate in good faith are so essential that it is worth emphasizing at this stage of the process. A recent, well-publicized dispute resulted in the jailing of a party whose behavior in mediation (yelling obscenities at the plaintiffs) was deemed by the federal judge to be a contempt of court. That case is extreme, but the courts have become involved in determining whether parties who made no effort to settle could be charged with the expenses of the failed mediation.

Good faith can have various and conflicting definitions. Settlement can result even when good faith is absent at the start of the mediation session, but it is important to explore what efforts the parties and their counsel expect from each other.

Commitment to mediation can be created through the cost of the pre-mediation phase. Parties who spend time and money in pre-mediation efforts make an investment in mediation. That investment can translate into a compelling reason to reach a resolution.

POST-MEDIATION: OPTIONS WHEN THE MEDIATION DOES NOT END IN A COMPLETE SETTLEMENT

Mediators often say that mediation is not finished until the parties have reached a full settlement or there is absolutely no hope left that the disputes can be resolved. But the parties and their counsel do not always regard mediation that way.

The parties and their attorneys become discouraged, even angry, by the failure to reach settlement. Believing that their efforts have been wasted, they leave the mediation session thinking that the mediation is done. Then they turn to the next step, be it court, arbitration, or the abandonment of the dispute.

A mediation session that does not result in a complete settlement need not be the end of the mediation. Countless disputes have been resolved after a "failed" mediation. What did those mediators, parties and counsel do to achieve resolution after everyone had left the mediation table? Let's examine some options for the post-mediation period.

Option #1: Document All Agreements Reached in Mediation

Although the parties may not have resolved their entire dispute, they may have reached agreements on certain disputed items or on procedures they would be willing to follow to continue their negotiations. Document these agreements in mediation notes or, if possible, in formal interim agreements. Such notes or agreements provide a starting point for the post-mediation negotiations. Partial agreements reached in mediation can serve as a catalyst for a subsequent full resolution of the dispute.

Option #2: Facilitate Ratification

A ratifier is a private leader, such as a CEO or board of directors, or a public body, such as a city council or school board, whose approval is needed to settle. When the ratifier is not present at the mediation session, there is the added factor of delay.

Handling the relationship between ratifiers and those directly involved in the mediation is, in itself, a negotiation. Careful thought needs to be given as to how the ratifiers should be brought into the process and when.

In these situations, the negotiators are usually much more educated about the disputes than the ratifiers. They need to plan how information will be communicated, and by whom, after the mediation.

Approaches for gaining the attention of the ratifier include:

a. Party communicates with ratifier

Have the party's team or team spokesperson communicate with the ratifier. Ensure that there is a report of the mediation, delivered by a trusted team member or the entire party's negotiating team. This approach will bring the ratifier into the process and provide him or her with relevant information should the mediator find it necessary to communicate with the ratifier.

b. Mediator speaks with ratifier

The mediator could speak to the ratifier in order to provide an overview of the situation from multiple perspectives, including the mediator's own evaluation of the dispute.

c. Parties join forces with mediator

Less commonly, the parties join forces with the mediator in an effort to persuade the ratifier that proposed solutions to the dispute are acceptable. This approach needs to be handled delicately. This partnership, whether overt or covert, changes the negotiators from adversaries to team members for this limited purpose.

Option #3: Create a Decision Maker

Decision makers can be created. If a negotiating team is fragmented or uncertain about how to proceed to settlement, the mediator can work with the team to designate a leader, much as a jury selects a foreperson to lead its deliberations.

It may be wise to divide the team into several groups, each with a clearly defined task. The groups can each be assigned a different part of the dispute and asked to draft a proposal for resolution of their issue. When the groups reconvene, they are naturally regarded as decision makers for their issue.

A variation of that approach integrates representatives of each party. When I have used this technique, I found that at the joint sessions, when the proposals were offered by the groups, everyone was very respectful of the proposals and willing to consider them seriously.

Option #4: Mediator's Proposal

The mediator can offer proposals in a variety of forms. A "blind" proposal is one in which no party knows what the mediator will propose or whether the other party is agreeable. If both parties agree, the dispute is settled on the terms of the proposal. If a party rejects the proposal, the mediator does not reveal whether the other side was agreeable to it.

Even if the mediator's proposal is not accepted, negotiations may continue. The mediator's proposal may guide a party to reduce or better its offer. Usually, though, the mediator's proposal is a last resort for settlement. It is often used to break a logjam over a relatively small difference between the parties' positions. Because the proposal emanates from the mediator, it can carry greater weight than the same offer proposed by a party.

Another type of proposal is the "binding mediator proposal." In this scenario, the parties appoint the mediator as "arbitrator" to recommend a solution to the dispute and they agree to abide by that recommendation. This approach is a close cousin of the ADR hybrid called "med/arb."

When it comes to making proposals, timing is everything. Made too soon, one or both sides could construe the proposal as too judgmental. They may believe that the mediator has not properly evaluated their claims or has become prejudiced against them.

Option #5: Schedule Additional Mediation Sessions

The time allotted for the mediation session may not have been sufficient to complete a settlement. In some instances, work needs to be done outside the session to provide information that is critical to resolution. Other people, for example, financial advisors or lenders, may need to be consulted before proceeding. Even obtaining the opinion of experts outside the mediation may advance the discussions.

Whatever the reason, scheduling additional mediation sessions and having a workable plan to keep the parties engaged in discussions should focus them on a course for eventual settlement.

Option #6: Keep in Touch

The mediator should keep in touch with the parties even when the mediation has not succeeded. At a recent AAA-sponsored conference of construction industry professionals. I asked the attendees whether they resented or welcomed continued contacts with the mediator. The response was clear: they overwhelmingly welcomed this contact.

Post-mediation contacts need not be made only by the mediator. Party representatives and counsel should feel free to initiate further discussions with the mediator. Settlements have resulted from those efforts.

Conclusion

When the mediation session follows the steps outlined here, the potential for success is increased. If resolution is not obtained in the mediation session, thoughtful use of options for continuing the negotiations make it more likely that a settlement will be reached.