This article is by Richard Shore, an attorney who focuses on the resolution of complex, multiparty disputes through alternative dispute resolution and litigation. He is a founding partner of Gilbert LLP.
If your business finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom. Most lawsuits settle before judgment, and increasingly litigants are turning to mediation—negotiation assisted by a third-party facilitator —to resolve their disputes. They hope mediation will be faster and cheaper than litigation and yield a better result.
But the potential benefits of such alternative dispute resolution are often undermined by the participants entering the process with the same litigation-oriented, adversarial mindset they meant to leave behind. Here are four counterintuitive strategies that harness the strengths of mediation rather than treating it as litigation light. They may not be traditional, but properly employed, they work.
1. Let the other side pick the mediator.
Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time consuming, and adversarial. Avoid this opening skirmish by letting the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, and introduces you to new mediators you might actually like.
Reserve your right to reject someone with an actual conflict, but don’t ding someone just because the other side believes the person is favorably disposed to them or their position. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. And such a mediator, wanting to avoid any perception of bias, may bend over backward to be fair to your side.
Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like, so there is little risk to accepting a mediator proposed by the other side, and much to be gained.
2. Don’t argue about who is right.
Well, not as much as you—or your counsel—want to, anyway. The goal of mediation is not to win an argument; it is to achieve a favorable settlement. Some substantive exchange is appropriate and even useful, but scoring substantive points is at most a tactic. Don’t let it hijack the process.
Usually by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating arguments can harden positions, antagonize the other side, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot. Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over substance later if the mediation fails.
3. Leave the litigators at home.
By default, litigators tend to handle both litigation and settlement responsibilities. Often it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation. The benefits:
● Settlement counsel approach mediation with a clean slate, untainted by the adversarial atmosphere and even animosity that litigation creates.
● Litigation and settlement require different mindsets. Having one person spearhead both may undercut his or her full engagement in either. Not everyone can switch gears so quickly.
● Cases often settle on the courthouse steps. Separating litigation and settlement allows litigators to maintain pressure on the other side at crucial moments while settlement counsel can devote their total effort to mediation.
● Litigation and settlement are specialized skills. They call on different abilities and personal qualities and involve different mindsets. Litigants should spend at least as much time and effort selecting settlement counsel as they do selecting litigation counsel.
4. Deal with hard issues last.
It always amazes me when a mediator says, “Let’s get all the issues out on the table right up front.” If your goal is to create as many impediments to settlement as possible, that is just the right approach. If your goal is to settle, you are generally far better off focusing on a key issue—usually money—first and leaving the other, sometimes harder issues for later. Once there is agreement on the key term, the parties will tend to feel that they have a deal and that the remaining terms will be worked out in due course. This approach creates momentum rather than impediments.
Indeed, it is often wise to leave key issues, or at least their final contours, to the drafting phase of a written agreement. Deals often fall apart over key substantive issues, but they generally don’t fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.