What Litigators Want From their Mediations

On July 22, 2022, the Alternative Dispute Resolution Section of the San Diego County Bar Association hosted a roundtable titled “What Litigators Want From Their Mediations.” Panelists included Nadia Bermudez, an employment attorney at Klinedinst PC; David G. Greco, a partner at RMO LLP; and Chris Hendricks, a personal injury attorney at Fox Law. The discussion was moderated by Ana M. Sambold of Sambold Law, who is chairwoman of the Alternative Dispute Resolution Section.

The panelists agreed that the key to successful mediations is coming to the table with the parties, attorneys, and mediator aligned on what the issues are. One way to achieve this is by sharing mediation briefs with both the mediator and the opposing party. Another way to set the table for a successful mediation is through a pre-mediation phone call with the mediator. Not only can the mediator make sure parties are on the same page before showing up, but these calls also give lawyers the opportunity to discuss issues with the mediator which their clients may not wish to speak on at the mediation. Being able to candidly discuss these matters with the mediator beforehand can also help the mediator establish trust and credibility with the clients during the mediation.

Online mediation is now becoming more favored amongst litigants, attorneys and mediators alike. Using a video conferencing service allows people from different places to attend the mediation conveniently, alleviating scheduling difficulties. Online mediation is also a huge money saver. Along with negating travel expenses for the involved parties, online mediation can reduce attorney billing and save on the cost of experts and adjusters. The panelists said they found only a slight drop-off in the effectiveness of online mediation, if any. Clients, they said, are typically very happy with online mediation. A hybrid model is available to satisfy clients who are not inclined to do mediation in a fully remote environment. Greco remarked that he hopes all his mediations to the end of his career will happen online.

The panelists also offered advice on when in the litigation timeline is the best time to start the mediation process. In particular, they warned about bringing the mediation to a head too quickly. Cases narrow over time. When valuations are far apart, often due to some type of a discovery issue, the parties often do not have enough information for a mediation to be successful; attempts to mediate at this juncture might only escalate tensions between the parties.  

Choosing the right mediator is another essential element to successful mediation. Mediators with extensive experience in the relevant legal area can often be found through word of mouth by asking colleagues. Bermudez regularly emails coworkers at her firm to find good mediators. In a less familiar jurisdiction, listservs can also be effective. Asking opposing party for a shortlist of potential mediators is a good way to narrow down options and select a mediator acceptable to both parties. This will also help parties find a mediator who is neutral and has a personality capable of handling the parties on both sides.

During the mediation, a well-timed mediator’s settlement proposal can be effective. Parties tend to give mediator proposals an extra measure of credibility. However, mediator proposals should not be made before the mediator thinks the sides are ready to agree. A mediator’s proposal made before the sides are ready can create tension and become a sticking point as mediation progresses. Further, mediator proposals should reflect what it will take to settle, not what he thinks the case is worth.

A good mediator will always read the mediation briefs beforehand, and pre-mediation calls and post-mediation follow-up are also incredibly important. Because mediation often doesn’t result in settlement until the second or third try, a mediator who contacts the parties after an unsuccessful mediation can potentially help get the parties back in the room to reach a settlement.

Other topics included mediator mistakes, client control problems, and mediation brief writing. If you are interested in learning more about Alternative Dispute Resolution or joining the ADR Section, visit the Alternative Dispute Resolution section homepage.