Michael Strauss offers a half-day mediation experience that -- if you follow his four-step program -- allows the parties to hit the ground running and wrap up a deal quickly and efficiently.
If your litigation practice is anything like mine of years past, you probably developed a good sense as to whether your particular case would require a half- or full-day mediation. Perhaps your client is pragmatic, unemotional, or reasonable as to the value of their case. In that case, you may lean toward a half-day mediation. On the other hand, if your client (or your opponent) needs some extra comfort and attention, maybe a full-day mediation would be best. These are reasonable conclusions, no doubt.
But, as a mediator, my perspective on half- versus full-day mediations has shifted. The reality is that most cases only need a half-day mediation, if approached with proper preparation. I would never recommend for a half-day mediation in class actions, multi-plaintiff cases, cross-actions, and similar types of complex cases, but nearly all other disputes are perfectly suited for a half-day mediation, regardless of the dynamics between the parties and/or counsel.
The reality is that most cases only need a half-day mediation, if
approached with proper preparation.
However, in order to increase the chances for success at a half-day mediation, there is a four-step program that I now ask the parties to follow after they hire me. (For cases involving wage-and-hour damages, there is a fifth step.) By diligently following the four (or five) steps below, the parties, counsel, and I can quickly cut to the chase and work on wrapping up a settlement, in even the most difficult cases, well within the time allotted for a half-day mediation.
The Four-Step Program For Successful Half-Day Mediations
1. The Parties Will Exchange Briefs At Least One Week Before The Mediation.
Exchanging briefs as early as possible before the half-day mediation has many, many benefits. For example, if there is insurance coverage, the plaintiff will want the carrier to know all of the strengths in her case, which may cause the adjuster to come to the mediation with more authority.
The biggest advantage to sharing briefs is that the revealing of positions can engender trust
between the parties. One party may not like or agree with the position taken by the other party in their brief, but that is to be expected -- both sides are likely never going to see their dispute in the same way. But, by sharing briefs, at least the parties can see that they are each coming to the mediation in good faith, ready to negotiate. They can avoid the tit-for-tat pitfall of many mediations -- "I'll only show you mine if your show me yours" -- and instead start building trust from the get-go. So I ask that the parties just dispense with their pretense and simply exchange briefs. If there are parts of your brief that are truly confidential, you can omit those parts and share the rest.
While sharing of briefs in advance of the mediation is always encouraged, please do not put a settlement demand or offer in your brief. In Step 3, I do request that the parties exchange their opening demand/offer prior to the mediation, but the best time to do so is after we have our pre-mediation Zoom conference (Step 2).
2. The Parties Will Attend Separate Pre-Mediation Zoom Conferences With Me.
Pre-mediation phone calls are great. Pre-mediation Zoom conferences are even better. After the parties have a chance to exchange their briefs, I set a pre-mediation Zoom call with each party. I discuss the briefs, the damages calculations, and any issues or stumbling blocks that may arise at mediation. I will also offer some assistance in selecting an opening offer or demand (see Step 3). I usually spend 30 to 45 minutes with each side.
If the defendant has affordability concerns, now is the time to let me know. In most cases, plaintiff's counsel will be unlikely to believe an affordability defense unless the defendant produces financial documents that clearly illustrate a likely inability to afford a settlement or judgment. We can discuss what documents you will need to gather and share with your opposing counsel, including any protections that can be put in place to maintain their confidentiality.
3. The Plaintiff Will Make An Opening Demand And The Defendant Will Make An Opening Offer Prior To The Mediation.
In order to really get the mediation off to a running start, the parties should also exchange at least one round of offers and demands. I encourage everyone to be as reasonable as possible with their first move, which will create momentum leading into the mediation. Even if the parties insist on making nominal moves -- the so-called "insult round" --, it's best to get it over with in advance of the mediation.
4. The Defendant Will Circulate A Draft Settlement Agreement Before The Mediation.
Many defense attorneys have told me that exchanging a draft settlement agreement with opposing counsel before the mediation may convey the message that the defendant is eager to settle. I certainly understand this concern, but there are some serious benefits to circulating a draft settlement agreement in advance of the mediation.
For example, if there are any terms that are important to the parties, such as the scope of a confidentiality provision or the necessity of payment terms that are secured by a stipulated judgment, the parties can incorporate a discussion of these issues from the start of the mediation. Raising them too late in the day will invariably delay the negotiations and push the parties past the half-day time limit.
If your client remains skeptical about circulating a settlement agreement before the mediation because it may show weakness or an eagerness to settle, I have a solution. The request to draft and circulate a settlement agreement before the mediation will be coming from me, which will let your client save face -- "We really don't want to give you the impression that we're eager to settle, but the mediator is making us do it!"
Finally, if the parties are able to strike a deal at the mediation, the hope is that there will be a minimal amount of time finalizing the settlement agreement and getting it signed. The parties come to mediation to resolve the case -- if they leave with a signed settlement agreement, not a short-form MOU that still requires further negotiation and drafting, they will have accomplished their goal.
5. (For Wage-And-Hour Cases Only) The Plaintiff Will Share Damages Calculations.
Oftentimes in wage-and-hour mediations, the parties can waste precious time debating the proper calculation of damages. For example, in a case involving a complicated pay plan with variable rates of pay, one party may claim that the proper overtime formula is one thing, while the other claims that the overtime formula is another. Or perhaps in a commissions-only wage claim, where an employee was not provided with a paid 10-minute rest period, the plaintiff's calculations may include rest period premiums and minimum wages for the unpaid time. Because, under Sanchez v. Martinez (2020) 54 Cal.App.5th 535 an employee must pick her remedy -- either rest period premiums or minimum wages, such damages calculations would be fatally flawed. Or, finally, perhaps the plaintiff made a simple mathematical error, such as not capping wage statement penalties at $4,000.
Why waste time at the mediation dealing with mistakes like these? The better practice is for the plaintiff to share her damages calculations (under the mediation privilege) with opposing counsel prior to the mediation. If defense counsel spots errors or recognizes that the plaintiff is seeking impermissible damages, we can deal with them before the mediation commences. The goal is to start the mediation with a full understanding of the plaintiff's maximum recovery on her wage claim. The defendant may deny liability, which is completely understandable, but at least the defendant will be able to better assess the risks involved in continuing litigation in the event the plaintiff is correct in calculating her maximum possible liability.
Now that you've seen my four-step (or five-step) program for half-day mediations, are you convinced? Do you think your next case can settle in half a day? Call me to discuss, or contact me below to check my availability.
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