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What Should You Do To Prepare for a Mediation?
1. Spend some time thinking through the case. Know the issues. Know the facts. Know the law. Know the likely outcomes.
2. Prepare your client for the process of mediation and also start laying the groundwork for settlement. Don’t lean on them yet, just start setting realistic expectations. Try to keep them from drawing firm lines in advance. Have them think about ranges/settlement scenarios instead.
3. Know in advance what your client wants/is willing to give to get the case resolved.
4. Make sure the opposing side has what they need to meet your demands at the mediation well in advance. (Example: up to date damages information)
5. Think about and plan for the logistics of the mediation. Are the right people participating. Did everyone block enough time. Joint sessions or separate floors. Buidling these steps into your mediation routine can make all the difference when it comes to getting a great result for your client.
February and March dates are filling up fast. If you would like to schedule a mediation, please contact Kelly Penning at 615-953-1122 or email her at admin@blair-law.com. You may also check out our mediation calendar on our website @ Blair-law.com
Mediating Cases With a Large Number of Parties
Does it require anything different of the lawyers or mediator?
Mediating cases with a large number of parties absolutely requires more from both the lawyers and the mediator. The sheer logistics can be challenging, particularly if the mediation is to occur in person. Not every office can accommodate five, ten, or more mediation rooms. The mediator and lawyers also need to consider whether breakout rooms will be needed where two or more parties can confer at times during the mediation. Even if the matter is being mediated over Zoom or similar medium, the logistics of who will be in the room must be thought out in advance.
Large party mediations also require more significant preparation. Simply put, there are more moving parts. The mediation will take longer. Anything that can be accomplished in advance should be. As the mediator, the earlier I can get materials from the lawyers in a mediation with many parties, the better. I also prefer to have advance calls with the lawyers to see if there are any preliminary matters that can be worked out or at least to identify speed bumps. Maybe everyone does not need to arrive at the same time. Having parties sit for hours before seeing the mediator can be counter-productive.
Lawyers should think through in advance whether they have given each participating party the information they will need to reach a resolution. It will be even more difficult for the opposing side to process and react to a smoking gun that is sprung on the day of mediation with a large number of parties.
If there are a large number of plaintiffs then one important question may be whether there is enough money available to resolve all the claims. If there is not, then consideration may need to be given in advance to how the limited funds will be divided. Likewise, if there are multiple defendants, it may be helpful to reach an understanding in advance about who will contribute to settlement first or in what percentage. Will the amounts of each defendants contribution be disclosed or not? All issues worth discussing in advance.
As lawyers we are often like the hamster on the treadmill, just trying to keep up. One of my jobs as your mediator is to slow you down for a minute and help you think through these and other issues to make sure we have the best shot possible at a productive mediation.
Beware the Statute of Frauds in Drafting Mediation Settlement Agreements
KEY POINTS TO REMEMBER:
#1 A Mediation Settlement Agreement is a contract and may be enforced as a contract under Tennessee law. Given that, the terms of the Mediation Settlement Agreement must be sufficient to be enforceable, including being mindful of the requirements of the Statute of Frauds.
#2 When the mediated settlement involves a dispute over real property, the Mediation Settlement Agreement should identify the real property in a material way – even if everyone participating in the mediation knows what real property everyone is fighting about.
SAMPLE FACT SCENARIO:
Imagine you represent parties in litigation over “the family farm”. Everyone in the case knows what makes up the “family farm.” The parties participate in an all-day mediation at the conclusion of which they enter into a Mediation Settlement Agreement that sets out how the “family farm” is to be handled. No one thinks to include a legal address or other legal description of the “family farm” in the Mediation Settlement Agreement as, again, everyone knows the “family farm.” Later, a dispute arises over the Mediation Settlement Agreement and a question is raised as to whether the settlement is enforceable due to the Statute of Frauds because the real property is not sufficiently described.
CASELAW:
In W addle v. Elrod, 367 S.W .3d 217, 228 (Tenn. 2012), the Tennessee Supreme Court analyzed whether a settlement agreement involving real property was sufficiently definite to be enforced where the emails making up the parties’ agreement referenced only the “property” when describing the property to be transferred, among other issues. Specifically, one party agreed to “convey her interest in the property” to the other party. Id. at 221. The Court recognized that although the “property” was not defined in the emails that made up the agreement, the cross-claim included a legal description of the property at issue, which was the only real property at issue in the litigation. Id. at 228. The Court analyzed the settlement under the context of whether it was sufficiently definite for purposes of the statute of frauds and concluded that the emails exchanged between counsel for the parties along with the legal description of the property included in the cross-claim contained sufficiently definite terms to enforce the agreement. Id. at 229.
Should You Exchange Offers Before the Mediation?
Maybe. You may not need mediation to reach a settlement, but you will not know unless you start negotiating. More likely, an exchange of offers ahead of time helps give everyone a sense of what ballpark the other side is in and gets everyone in the spirit of negotiating. Here are a few things to keep in mind when exchanging offers pre-mediation:
1) Choose a pre-mediation demand or offer that leaves room to move, but still sends a message that there is hope of getting the case resolved at mediation.
2) Sending out an astronomical demand pre-mediation can create unrealistic client expectations that must be dealt with at the mediation. Even when you tell clients not to focus on a particular number, they do.
3) An astronomical demand also can result in a painfully frustrating mediation process as you try to figure out how to move from a sky high number to a reasonable range without losing the confidence of your client.
4) An unreasonably low starting offer can equally throw cold water on the whole process. There should be a good reason (such as indicating to the opposing side a settlement range that you will never be able to exceed) for making an exceptionally low offer. Otherwise, if you want to get the case resolved and you must start exceptionally low for some reason, it is probably best to wait for the mediation so the low offer can be delivered with an explanation and the process will allow for moving beyond that number quickly.
If you are looking to schedule a mediation, please give us a call. We would love to help. Here are some dates that we have open in the upcoming months…..
February 22, 23, 24, 25, 26
March 1, 2, 3, 23, 24, 26, 29, 30, 31
April 1, 5, 6, 12, 13, 14, 15, 16, 19, 20, 21
For other dates please check our mediation calendar at the link below. https://www.blair-law.com/mediation.html
To schedule a mediation , please contact Kelly Penning at admin@blair-law.com or call our office at 615-953-1122.
Drafting the Settlement Agreement and/or Release Prior to the Mediation
If you have a complicated – outside the box- case or anticipate needing hot button terms such as confidentiality or non-disparagement, then I recommend you draft your proposed Settlement Agreement and/or Release prior to the mediation.
First, it helps you prepare for the mediation in a really thoughtful way. Working through the terms of settlement forces you to really think about what your client needs from a resolution so you can ensure there are no loose ends.
It also relieves you from that end-of-mediation panic where you and your client, exhausted from hours of mediating, try to frantically think of everything you need in the mediation agreement to tie things up and how to word it perfectly.
It gives sophisticated clients an opportunity to weigh in on the terms in a meaningful way and conveys to them how prepared you are for the mediation. Clients are impressed when you show up at the mediation with a prepared settlement agreement indicating a clear focus on wrapping the case up in a way that is most favorable to the client.
Confidentiality and non-disparagement agreements are often hot topics at mediation (or after, threatening to blow-up the deal). If the language is readily available at the mediation, it can be worked through quickly and any disagreements about the wording resolved with the help of the mediator.
Of course, there is a flip side to this advice. Be strategic about how and when you bring out your draft settlement agreement or release. If it is a set-in-stone deal breaker document then send it to opposing counsel before the mediation or circulate it at the beginning so everyone has time to look at it and think it through. If there is some flexibility in the wording, then be mindful of the length/complexity and when you circulate it. No one has the energy to work through the terms of a twelve-page settlement agreement after mediating for ten hours. In fact, you may not even have to circulate the entire document at the mediation, just the key/hot terms which could be incorporated into the short list of mediated terms signed at the time of mediation.
On the other hand, if you think the other party is likely to change their mind a day or two after mediation, consider bringing the settlement agreement, release, settlement funds, and order of dismissal to the mediation so the deal can be consummated on the spot. Another popular option is to draft an Order of the Court setting out the settlement terms for Court approval and have it signed at the mediation and immediately filed thereafter. The key is to do what is necessary to make sure the deal is really closed by mediation.
Tips for Best Results at Mediation
1. Consider exchanging offers ahead of time. It may help with setting expectations.
2. Prepare your client for the mediation. Make sure the client knows what to expect from the process.
3. Do not let the client get set on a number in advance of the mediation. Do talk about possible outcomes and reasonable expectations.
4. Make sure your client has sufficient authority to get the case settled.
5. Prepare the mediator. Tell the mediator what the mediator needs to know to get the case settled – be candid. If you anticipate problems, tell the mediator in advance.
6. Have liens worked out in advance or be ready to work them out during the mediation.
Mediating Trust Disputes
More often than not, mediation of trust disputes concludes with a nonjudicial settlement agreement that is binding on the parties and can be approved by the Court. TCA 35-15-111 allows the trustee and the qualified beneficiaries of a trust to enter into a binding nonjudicial settlement agreement (“NJSA”) with respect to any matter involving a trust. A nonjudicial settlement agreement is valid so long as it does not violate a material purpose of the trust and includes terms that could properly be approved by a court. The NJSA does not have to be court approved, but often counsel will move for court approval if an action is pending as a method of more securely closing the door to challenge. Examples of matters that may be resolved by NJSA include, but are not limited to: construction of the trust terms; trustee accounting issues; allegations of liability regarding actions of the trustee; change of trustee; and even termination of the trust. More often than not, mediation of trust disputes concludes with a NJSA which is binding on the parties and can be approved by the Court.
Baseball Mediation
Baseball Mediation is a negotiation technique used when the parties are otherwise at an impasse. The impasse is broken by having all parties submit a final offer to the mediator and agreeing that the mediator will choose one of the offers, which will then become binding settlement terms as to all parties. The technique challenges all parties to submit realistic, reasonable offers so as to ensure another party’s offer, which may be less desirable, is not chosen. The method offers the guarantee of resolution and also manages risk.
In practical terms the Baseball Mediation technique is essentially the opposite of the Mediator’s Proposal technique, the latter of which has the mediator making a final settlement proposal with the parties accepting or rejecting the mediator’s proposal in a sort of blind fashion.
Imperative to the success of Baseball Mediation is that the mediator cannot make modifications to any parties’ proposal, the mediator can only accept one of the proposals as-is. The conundrum incentivizes all parties to be reasonable in offering terms.
Baseball Mediation is generally used after traditional mediation has failed to result in a compromised settlement.
The parties may also choose to combine the Baseball Mediation technique with a High-Low Agreement, further ensuring that neither party will be surprised by an extremely high or extremely low option that is selected then by the mediator. For example, after mediating all day, the parties reach an impasse with the lowest demand of the day from the Plaintiff at $850,000 and the highest offer of the day from the Defendants at $350,000. The parties then enter into a High-Low Baseball Mediation phase where both parties agree to submit a final offer for selection by the mediator, but only between the parameters of $350,000-$850,000. The mediator chooses between the two offers submitted and the mediator’s selection is binding on all.
To ensure enforceability, the ground rules of the Baseball Mediation and the commitment to be bound should be signed off on by the clients prior to submission of the final offers for mediator selection.
What To Include in Your Pre-Mediation Statement to the Mediator
1. A general summary of the case. This should be a who is who and what is what. Who are the parties, the attorneys, and other key players? What happened to bring about the litigation? When, where, why, how.
2. Status of the case. Explain what discovery has occurred and what is left to occur . Explain the outcome of any substantive motions.
3. An evaluation of liability and damages. Layout the legal claims and defenses. Give the mediator what he or she needs in order to argue your side of the case.
4. Point out the weaknesses and problems for the opposing side.
5. If your client’s side of the case has problems, address them. Explain how you plan to deal with them.
6. Be Candid. Tell the mediator what you need from him or her . Are there personality issues that may impact the mediation? Is the client inclined to listen to you or is he/she being persuaded by someone or something else? How can the mediator help?
7. Trial Date. Do you have one? What will it cost to get to and through trial for each side?
8. Include a copy of key documents, photos, pleadings, deposition excerpts. Remember to stick with what is key, you are paying the mediator to review this information.
Does the Opposing Party Have What They Need to Evaluate your Case for Mediation?
Many decisions critical to the success of a mediation are made far in advance of the mediation. Most importantly, settlement authority. This is particularly true when settlement funds are coming from insurance proceeds. Given that, it is imperative that you make sure the opposing party has what they need to evaluate your case well in advance of the mediation. Producing medical records, bills, or other documentation to support your clients’ damages during or even shortly before the mediation is not likely to be helpful. Settlement authority has alredy been determined. Likewise, waiting until the mediation to produce a damning expert report or key piece of evidence may be too late because the other party has already formed unrealistic expectations and their lawyer may not be able to walk them back.
The best practice is to make sure the other side has what you think they will need to fully evaluate your side of the case thirty days prior to the mediation. This does not mean you must complete your mediation statement by that date or even your report to your own client, but be sure to get in the other lawyer’s hands all the key pieces of information you think will have an impact on how they evaulate the case.
For available mediation dates and to schedule a mediation, please check our mediation calendar at the link below. https://www.blair-law.com/mediation.html
You may also contact Kelly Penning at admin@blair-law.com or call our office at 615-953-1122.
Why Sign a Mediation Settlement Agreement at the Conclusion of a Mediation?
Signing an agreement that reflects the terms of the settlement at the end of a successful mediation is crucial to enforcing the settlement. The signed document is enforceable as a contract. See Myers v. Myers, No. E2004-01362-COA-R3-CV, 2005 WL 936925 (Tenn. Ct. App. April 22, 2005), perm. app. denied. Even if a more formal settlement document needs to be drafted to fully cover the details of the settlement, entering into a written consummation of the key terms is critical to preventing either party from backing out due to second thoughts. If it turns out in the later formal drafting process that there truly was not a meeting of the minds, or some evidence of fraud, duress, or a mistake arises then general contract law could also apply to invalidate the agreement. Id. at 3. Disputes over enforcement of the agreement may be heard on motion by the Court in which the matter is pending. See McMahan v. McMahan, No. E2004-03032-COA-R3-CV, 2005 WL 3287475 (Tenn. Ct. App. December 5, 2005).
Using Brackets to Move Negotiations in Mediation
You saw the title of this email and thought “I hate brackets”. But you have to admit they work. Maybe they do not work all the time, but they work often enough to make them a useful tool in mediation. Brackets are used to bring the parties closer together in negotiation. For example, if Party A is at $10,000 and Party B is at $100,000. Party B may offer to come down to $80,000 if Party B will agree to come up to $30,000. The idea is to close the gap more quickly. Bracketing serves many purposes. It helps parties who are very far apart determine whether they have hope of getting into the same settlement range. It can also ease the stress and frustration of the negotiation process by accelerating things. One common reason lawyers and clients are often reluctant to commit to a bracket is because the are worried that it signals to the opposing party that the case will settle in the midpoint of the bracket. I always remind parties, the bracket is the bracket. It comes with no promises about the next move or where the negotiations will end. If all parties keep that mindset, brackets can be used effectively to make much needed progress in otherwise sometimes frustrating negotiations. Next time the mediator suggests using a bracket, give it a try.
Using a Mediator’s Proposal to Help Get the Case Resolved
A Mediator’s Proposal is an effective tool for helping resolve a case when negotiations stall. While there may be different variations, most commonly, a Mediator’s Proposal is a suggestion of settlement terms presented from the Mediator to both sides. Generally, a Mediator’s Proposal is offered at the conclusion of a mediation. Using all the knowledge learned about the case in preparation for the mediation and during the course of the mediation, the mediator offers settlement terms of the mediator’s own making, without input from either side. Of course, when offered at the conclusion of a mediation, the Mediator’s Proposal has the benefit of being informed by all the information learned during the course of the mediation, including what one side might be willing to give to resolve the case and what the other side might be willing to take. Often the Mediator’s Proposal represents the greatest compromise, requiring both parties to stretch beyond where they originally wanted to go.
As the mediator, I require that all parties agree to me even making a Mediator’s Proposal, otherwise I will not do so. Sometimes a party will not want a Mediator’s Proposal due to concern that the proposal will be too different from that party’s own evaluation of the case. In many instances though, the Mediator’s Proposal offers a fresh perspective on the case and potential outcomes and can serve as leverage to obtain more settlement authority from the client or insurance carrier.
For my Mediator’s Proposals, the same proposal is given to all parties, but the response process is blind, thus if any party declines the Mediator’s Proposal then all parties are told there is no deal, but no more. In other words, if anyone rejects the proposal, no one will know if another party was willing to accept the Mediator’s Proposal.
I generally confer with counsel to determine an appropriate length of time for all to respond to the Mediator’s Proposal. W e take into account the length of time it will take to potentially get more settlement authority. I also have found the extra time for consideration to be beneficial in moving Plaintiffs who were stuck on a number.
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