Mediator’s Minute: Preparing for Mediation Series, Part 1: The What and Why of Pre-Calls
In a mediation, settlement negotiations begin long before the parties meet in a zoom or conference room. The parties negotiate whether, when, where, what, and with whom to mediate. They frequently exchange informal or formal discovery. Counsel prepare briefs and their clients. There is a lot of work that can—and I would argue should—be done in advance of mediation. In this multi-part series, we explore some of the nitty-gritty of preparing for mediation, starting with the what and why of pre-mediation calls.
To me, the “pre-call” is a bit of misnomer, as the pre-mediation call is very much a part of the mediation. This call sets the stage for the mediation session in many ways. It gives the parties the opportunity to air any issues not appropriate for the mediation briefs or flag potential impediments to settlement that might be tackled in advance of the in-person or zoom mediation session. It is also an opportunity for counsel to introduce themselves and their clients to the mediator and to lay the foundation for their mediation narrative. It is also a great opportunity for more senior counsel to mentor junior attorneys and for more junior attorneys to shine in front of more senior colleagues. Let’s dive in…
What is a Pre-Mediation Call?
Typically, the week or two before mediation, this call is often scheduled as a one-on-one between counsel for one party and the mediator. Each set of counsel gets the opportunity to speak directly with the mediator and highlight their mediation or case strategy, raise concerns, and start negotiating on behalf of their client.
Can I ask for additional calls?
Every mediator is different, but I say, YES! If there is additional information to share, or a new concern to raise, there is no reason not to inform the mediator and ask for some additional time with her. Often, parties hold information until the day of mediation that could easily be addressed with a call in the days or weeks before mediation. For example, where there are claims of financial distress by a defendant that will impact settlement negotiations, or where a last-minute deposition yielded new information key to the valuation of the case, or a change in party representatives means that new, or different, individuals will be in the room at mediation. In these cases, it can be helpful to begin the discussion prior to mediation. Perhaps there are additional experts or financial records to prepare or bring to mediation that could facilitate negotiations where there would otherwise be deadlock. No one wants to put in all of the work to prepare for mediation only to realize that there is a piece of information missing that requires the parties to pause the mediation and schedule a second (or third) day.
Flag It: Raise Issues Not in the Briefs
Is there a particular cultural norm or sensitivity that is important to your client that the mediator should be aware of in advance of the mediation? Flag it! This call is your opportunity to speak openly with your mediator about these issues. Similarly, if there are particular dynamics between the individuals who will be in the room (or who might be missing) that could influence settlement, share that with your mediator. This provides important context for the mediator as she reaches into her toolbox to help the parties resolve their case.
In addition, the pre-call may also be your opportunity to flag weaknesses in your client’s case. Frequently, parties prefer to omit these details from a mediation brief for a variety of reasons. Disclosure of this type of information does not diminish your capacity to zealously advocate for your client—in fact, it enhances it! This may seem counter-intuitive at first. However, every case has its strengths and weaknesses. Acknowledging both enhances credibility, while helping to narrow the issues. Remember, as a mediator, it is our job to safeguard information that the parties wish to keep confidential. Sharing information with the mediator about potential weaknesses does not mean sharing this same information with the other parties.
Introduce Yourself (And Highlight Your Team)!
The pre-call is also your opportunity to get to know your mediator. Find out more about their style, share a little about your own, and use this opportunity to start negotiating on behalf of your client.
It is also an opportunity to highlight team members. For a variety of reasons, lead or senior attorneys typically take the spotlight at mediation. Sometimes they are focused on being able to shine in front of their clients. Other times, a client may have concerns about too many lawyers appearing at mediation and the impact on bills. If there are members of the team that will not be at the mediation, a pre-call is a great opportunity for other members of the team to shine. The pre-call is also a great opportunity to tell the mediator how and when you want each of the attorneys on the team to participate in the mediation. Why not take this opportunity to show off an associate’s command of the data or a strategy point that they came up with? Sharing this information in advance of mediation allows the mediator to get to know your team better and has the added benefit of setting the stage for your arguments.
Lay the Foundation for Mediation Day
On the day of mediation, would you like the mediator to arrive armed with and focused on your best arguments or those of another party? Most likely, you would prefer for former. The best way to do that is to treat every step of mediation preparation as your opportunity to lay the critical foundation from which you will build your negotiation strategy at mediation and your credibility with the mediator. What is the scope of this case? How important is it to your client to settle? What impediments do you see from the other parties? While your mediator may not engage in discussion of all—or any—of the substantive issues during a pre-call, even the process of reviewing the logistics of mediation offers the chance to start weaving in your narrative.
Whatever you do, treat the mediation pre-call with the respect it deserves. It is likely to yield dividends the day of mediation.
Shireen Wetmore is a mediator specializing in complex employment matters and can be reached for questions, comment, or booking at www.shireenwetmoremediation.com.
This Mediator’s Minute is for informational purposes only and does not constitute legal advice.
