NLA REVIEW	PREPARING YOUR CASE FOR MEDIATION or How to Stop the Gunshots and Approach Your Opponent with a Handshake by Rita Lowery Gitchell,, Esq.	Spring 1997

The Desire to Win

Most lawyers are familiar with being described as a "hired gun" among other names. Many lawyers, myself included, have practiced with the mentality that it "is not over until I win." The first year in my career, I remember a junior partner sending me over to meet the "enemy" attorney. My specific mission was to deliver a document. When the "enemy" invited me to sit down and discuss the case, I was suspicious and leery. I left feeling I had defeated the "enemy" by not giving him any information that would help his client. Years later, looking back on that instance with experience, I can see how the "enemy's" lawyer, later talking to my junior partner supervisor, had a good laugh over my "I'll never lose" philosophy. Early on, I had to learn that a good lawyer is a counselor who advises his client pro and con on the whole picture of engaging in "war" and its consequences. Then the client, not the lawyer, needs to define what is a win.

Using Mediation to Avoid Bankruptcy in Winning the War

In a civil jury trial, unless there is a hung jury,there is usually a winner and loser. Due to costs of litigation, the winner may actually be a financial loser.

Although it does not involve a jury trial, a story about Abraham Lincoln's young lawyer days illustrates this point. It is said that a creditor came to Lincoln demanding the debtor pay him $2.50. Lincoln did not want to take the case knowing the debtor was impoverished, the creditor did not need the $2.50, and society, according to Lincoln, shouldn't be driven by greed or insensitivity. Nonetheless, because Lincoln was the only attorney around, he felt bound by oath to give the creditor due representation. Therefore, he charged the creditor $10.00 in legal fees. He then called the debtor and paid him $5.00 for his time. Lincoln asked the debtor what happened, and the debtor pleaded guilty. The debtor paid the creditor $2.50¹. Who really was the winner in that story?

Sometimes, there are more than finances at stake, and as a matter of principle, people wish to win at all cost as the client creditor did. Others may "seek their day in court" to have an opportunity to tell their story.

Parties, however, who have a dispute where the win/lose issues are more gray than black and white may not only lose their case but a great amount of money in a win/lose situation. While arbitration can save legal fees, there too the result is a win/ lose award by the arbitrator.² In contrast, mediation is the process where an impartial intervenor, or intervenors,, assist the parties in reaching a voluntary settlement of their differences through a pure form mediation or evaluative mediation.³ The mediator may use evaluative or facilitative techniques to help that parties resolve their case.

In the "evaluative mediation" method, mediators, who are lawyers familiar with the area of law at issue, or experts in the subject area in dispute, can pose to each side questions to point out the strengths and weaknesses in their case.⁴ In "pure form mediation", the mediators work to help the parties themselves become fully responsible for generating options and solutions and do not give the parties their personal opinions on the issues. The mediators facilitate discussion to "reality test" the consequences of not settling the case.⁵ The mediators explore with the parties the consequences of the alternative.⁶ Many mediators use a hybrid of the two styles.⁷ The result hoped for is a win/win (or lose/lose but save costs) situation where the parties, not the lawyers or the judges, agree on how to resolve the case, with the aid of the mediator or co-mediators.

Co-Mediatlon of Malpractice Cases In Chicago

One of my clients, a large Chicago hospital, Rush-Presbyterian-St. Luke's Medical Center, began a program in 1995 to resolve some of their disputes through mediation. The hospital invited highly regarded medical malpractice lawyers from the Plaintiffs Bar and the Defense Bar to a training program to educate lawyers on becoming mediators.⁸ The evaluative mediation method was preferred due to the highly technical and complex medical ant legal issues involved in medical malpractice cases.⁹

Plaintiff attorneys, who had claims against Rush-Presbyterian-St. Luke's Medical Center, could review the list of trained mediators and select one lawyer from the Plaintiffs Bar and one lawyer from the Defense Bar to be the mediators in their case, subject to the approval of all the client's lawyers participating in the mediation.¹⁰

Selecting Cases for Mediation

As one of the medical malpractice defense attorneys representing the hospital in litigation, I was given the task to select which, if any, cases were appropriate for mediation and to represent my client in the mediation.

Factors that went into selecting appropriate cases for mediation included the same analysis any attorney does in evaluating a case for trial and/or settlement potential. The following factors were reviewed: (1) the likelihood of a favorable or adverse verdict; (2) the discovery needed to obtain the information necessary to come to an estimate of a verdict; (3) the amount of time involved in obtaining the discovery information and final resolution; and (4) the cost of defense during pretrial and trial. Thus, I found the task of selecting cases for mediation no harder than selecting cases for settlement potential.

Selecting a Mediator

The next step became determining which mediators I thought were appropriate for my specific case. The factors I considered were: (1) the reputation of the attorneys in handling cases similar to my own; (2) my client's input on reviewing the credentials of the available mediators; and (3) review of the mediator's background for any potential conflicts with the particular attorneys, clients, or subject matter.

Preparing the Case for Mediatlon

Once the opponent, plaintiff's counsel, and I agreed on the mediators, the next step became the preparation for the mediation process.

Mediatlon Agreement

Once the parties had agreed on the mediators, a mediation agreement was signed by all of the parties who wished to participate in the mediation process. The agreement contained the following nine provisions:

1. Impartiality and Competency of the Mediators
   Each party acknowledged he made his own determination as to the competency of the mediators and had no doubt regarding the mediators' impartiality.

2. Role of the Mediators
   The role of the mediators was to express opinions on the applicability of law to the facts to the extent that such opinions would, in the judgment of the mediators, be helpful in facilitating a settlement. The parties, however, agreed they would rely solely on the advice of their own attorneys as well as their own judgment in arriving at a resolution of their dispute.

3. Good Faith and Right to Withdraw
   Each party was to act in good faith but reserved the right to withdraw from the procedure at any time the party deemed appropriate. However, in the event of a withdrawal, each party was to remain responsible for its share of the fees and expenses incurred up to the time of withdrawal.

4. Attendance and Settlement Authority
   The parties were asked to have an individual present who had the authority to agree to a settlement within the terms related to the limit of the demand. If a person with authority to settle was not available to attend, then the other parties were to be notified in advance of the mediation.

5. Individual Caucus
   Mediators were permitted to meet and caucus with each party separately during the conference. The parties were advised that information disclosed to the mediators during the caucus could be communicated and disclosed to the other party unless the mediators were otherwise advised.

6. Confidentiality
   The parties agreed that statements relating to the mediation process or documents created for the mediation process were inadmissible and not discoverable for any purpose including impeachment at any pending or subsequent proceeding. However, evidence that would otherwise be admissible or discoverable would not be rendered inadmissible or non-discoverable as a result of its use in the mediation process.

7. Immunity
   Mediators were to have immunity equal to that of the judges and court employees under state law.

8. Compensation
   The amount of compensation on an hourly basis for each mediator, including the time for reviewing preconference submissions and actual expenses incurred during the procedure, was specified in the agreement. Further, the mediators' fees and expenses would be borne equally by all sides of the controversy and paid within 30 days of receipt of the billing statement In addition, a minimum of three billable hours of time would be due to the mediators for the first conference unless cancelled ten days prior to the date scheduled.

9. Pre-Conference Submissions.
   Parties were asked to submit pre-conference submissions to the mediators ten days prior to the mediation. The pre-conference submission, not to exceed six pages, would include: (a) a statement of facts, including description of injury, special damages, past and future expenses; (b) theories of liability and damages; (c) reports of experts and consultants; (d) reports of witnesses; (e) status of the case and expected trial date; and (f) last demand or offer.

Preparing the Pre-Conterence Submisslon

The work involved in preparing pre-conference submissions is very similar to preparing for trial. Since the pre-conference submissions were sent to the mediators in advance of the mediation session, I theorized that the lawyer should be as concerned about the first impression that the pre-conference submission makes on the mediators as a lawyer would be about his brief making an impression on the Appellate Judge or the trial being decided by the jury during opening statement. Therefore, the pre-conference submission was written to be as persuasive as possible and to enable the mediators to have a clear picture of my client's position and the controversy. One lawyer estimated he spent 50 hours on the pre-conference submission.¹¹

In trying to keep to a six page minimum, but yet wanting to educate the mediators, about some technical aspects in cases that would be difficult to grasp without an hour or more time to study prior to the mediation, I chose to go ahead and append those types of technical evidentiary or documentary reports as exhibits to the pre-conference submission. Other advocates have sometimes chosen to keep those technical types of information to review with the mediators during an individual caucus. The lawyer needs to make a judgment call as to what and how much information he wants the mediators to know prior to the mediation and what can be revealed during the negotiation process.

Preparing the Client for Mediatlon

Discussing all pre-conference submissions with your clients helps prepare them for the mediation. If any new arguments are raised in the submissions then, there is time to discuss rebuttal positions and to locate any supporting evidence to help refute the opponent's position. The lawyer can also work with his client to keep any emotional reactions to the pre-conference submissions in control, so the client is not emotional to the point of interfering with the resolution process. A clear explanation to the client about what to expect during mediation is important, just as a lawyer prepares his client to know what to expect during trial. For example, under the mediation agreement I worked with, it was important for the clients to let the mediator know what statements made during the individual sessions they did not wish to reveal to the other party.

The next stop was to prepare the opening statement for the mediation presentation.

Opening Statement

I found preparing for a mediation had many similarities with preparing a case for trial. The mediation process was to begin with an opening statement. However, unlike the trial court, where a lawyer prepares to speak to a jury, I was addressing learned peers and the claimant/plaintiff and his/her lawyer as well as my own client. Another difference was that I was trying to reach an agreement with the claimant/plaintiff by the end of the mediation session, if possible, rather than ending a trial with a win/lose verdict.

Thus, in preparing my opening statement, I found myself stepping into the shoes of my opponents and wondering what questions they would have about my client's position and what specifically they needed in order to resolve the case. I reviewed the claimant's needs for medical help for claimed pain and suffering his financial needs, and interest in preventing recurring incidents. I also was concerned about my opponent's educational level and understanding of the technical medical and legal issues involved in the case. Therefore, during my opening, I chose to personally acknowledge the plaintiff/claimant and his/her alleged concerns in the plaintiff/claimant's language. Thus, my first approach was to acknowledge my opponent's position and needs.

Next, I explained that my role at the mediation was to explain my client's side of the case, and I asked the plaintiff/claimant accept me in my role as advocate for my client. Then, as an advocate with a win/win mentality, I worked to persuade the mediators to agree with my client's position. I used demonstrative materials as necessary in my opening statement such as copies of x-rays, records, charts or other documents to illustrate whatever point I was making. I outlined my understanding of the plaintiff/claimant's position, but showed why I respectfully disagreed with it.

Then at the end of my opening statement, rather than insisting on an absolute win/win outcome for my client, I would explain why my client had decided to mediate the case and my appreciation for the plaintiff/claimant's willingness to accept my client's invitation to resolve the case through mediation. I then welcomed any questions at that point from the mediators. After opening statements, the mediators separated the parties into separate rooms for individual caucuses.

Individual Caucuses

In preparing for the mediation, I was cognizant that if the mediation should not end in resolution, I still needed to be prepared to proceed with the case to trial. Therefore, in preparing the case for mediation, I needed to decide if there were any particular arguments I would wish to save for trial and not bring up at the mediation.

I also had to choose what I was going to discuss at the individual caucuses. Individual caucuses are private meetings the mediator conducts with each party during the mediation to explore issues, alternatives and consequences of courses of actions.¹²

In handling the professional negligence cases, the type of documents I chose to discuss at individual caucuses were usually evidentiary document or case law, that would support factual and/or legal positions or statements made during opening statement.

Usually in an individual caucus, the mediators would inquire as to what issues were in disagreement that were prevent resolution of the case. Since the issues and areas of disagreement were clarified through an evaluative and facilitative mediation, the co-mediators would inquire as to the strengths and weaknesses in my client's case. At that time, I might disclose the evidence to support the specific issues in the case. The mediator then would often ask whether any of the information disclosed during the caucus could be disclosed to the other party. I would havethe option of determining with my client whether we wanted the mediator to disclose certain information or whether we wished to see the opponents in a joint session and present the information ourselves, or whether we chose not to disclose theinformation at that time.

Also during the caucuses, at times, the mediators would give me and my client's a specific task, perhaps, to explain how we planned to prove a specific point or issue, or asking us to determine what damages would be worth if a jury was to believe the other party's position. Although I did not specifically know what the mediators were doing with the plaintiff and plaintiff's attorney, my assumption was that the same issue clarifying techniques were used with my opponents also in order to get to the root of what was preventing settlement.

Private Client Meetings

Sometimes during the individual caucus, there would be information about the case that I wanted to review with my client outside the mediators' presence. At that time, I would ask the mediators to allow me the opportunity to privately discuss with my client whether we wished to explore the particular issues that the mediators had raised. Also, if there were issues that I wished to preserve for trial and not make part of the mediation, these were types of topics which would be reserved for individual conferences with my clients outside the presence of the mediators. Of course, in the individual conferences with my clients, we would also discuss whether disclosing the particular information would aid in mediation or whether we thought we would end up trying the case and would be in a better position by keeping the work product to ourselves for the time being.

Having private meetings with just my client and/or the mediators also gave my clients and the other side an opportunity to vent any emotions privately with the mediators without disrupting communication between the parties. The mediators would inquire as to what one party thinks the other party will do or how the other party will react to a demand or offer. The mediators would also make inquiries as to what would happen if the case proceeded to trial and what a realistic resolution would be at the time of the mediation.

While the parties agreed that the mediation process would be confidential, and that nothing stated during mediation could later be brought up at court, the parties leaving a mediation nonetheless have a clearer understanding of their opponent's case and how their opponent plans to prove his/her case at trial. Just as a lawyer may select which depositions will benefit a case best, and in what order witnesses should be deposed, a similar analysis goes into determining what hierarchy could be followed in selecting documents or evidence during the individual caucuses to support the case and the position made in the opening statement.

After individual caucuses, my clients and I would review what points we had agreed we would be willing to concede during the mediation. Depending on the issues and points raised by the mediators, we might reevaluate those concessions and see if we were willing to change our positions based on points of discussion raised by the mediators.

The Resolution or Non-Resolutlon Still A Win/Win Sltuatlon

When there is an offer and acceptance and a resolution is reached, the parties may feel equally happy or unhappy about the situation. It may be recognized during the mediation process that neither side totally "won" its position, nevertheless, the case was resolved and the consequences of resolving the case were less than the consequences of trial—be they financial, emotional, physical, or intrusion into personal time.

When mediation does not end in resolution, both sides, and their lawyers, nonetheless, are left with a clearer picture of what the issues will be at trial, how firm the other party is in his/her position, and an educated prediction of the costs and consequences that lie ahead should the case not resolve prior to trial. The mediation can be, in essence, a preview of the entire trial process which helps everyone, particularly any parties unfamiliar with what will take place at trial, and affords them a more realistic viewpoint of what the future could hold. Keeping clients advised and informed of the potential outcome of their cases is always a win/win situation.

The Author's Perspective—Explore Shaking Hands First

I was so impressed by the mediation process that I decided to take additional mediation training to become a certified mediator. While every trial lawyer appreciates the thrill of winning a jury trial, winning at all costs is not always desirable particularly in today's expensive climate. Clients today are looking for ways to reduce court costs and legal fees. While I still keep up my advocacy skills and am quick to shoot at the weaknesses in my opponent's case, I also appreciate my opponent's strengths, as well as their weaknesses, and counsel my clients accordingly. I have found mediation to be a valuable tool in facilitating the settlement process. What could take several appearances in pretrial court or several weeks of trial can be resolved in a day with mediators familiar with the issues and willing to spend the necessary time to resolve them.

Mediation requires that the trial attorney first find good mediators whom he and his opponent respect; that he keep his gun holstered; and that he meet his/her opponent with open arms. This does not prevent the attorney from practicing shooting privately in the individual caucuses or client meetings and working with the mediators and the client to determine whether to go to "war" or make peace. The peacemaking solution has the benefits of a final decision, not subject to further appeal, along with containing costs and saving time. In balancing the scale, sometimes winning the "war" may not be worth the battle. Therefore, to better serve clients on surviving a "war", the trial attorney should approach mediation with open arms and open mind, but knowing fullwell that he or she is still a great shooter, and is prepared for trial.

¹ Brouwer, Wayne,President Robin Hood Catholic Digest,p. 83, February (1997).

² Rogers, Nancy and Salem, Richard, A Student's Guide to Mediation and the Law, Ch. 1,Introduction, p. 1-5 (1987).

³ Galton, Eric, Representing Clients in Mediation, Mediation Styles,p. 1 (1994).

⁴ Id. at 2.

⁵ Id. at 3,4.

⁶ Id.at 4.

⁷ Id.

⁸ Lemer, Jerome The Rush Initiative for Resolution of Medical Malpractice Claims, Chicago Bar Association Record 40, 42 (Jan. 1997).

⁹ Id. at 41.

¹⁰ Sanders, Carol McHugh, Putting A Bandage on Med-Mal Cases, Chicago Lawyer, p. 4, 5 (April 1996).

¹¹ Ibid.

¹² Rogers, Nancy; Salem, Richard; A Student's Guide to Mediation and the Law, Chapter 2, Overview Mediation Process and Techniques, p. 37 (1987).

ABOUT THE AUTHOR Rita Lowery Gitchell is a partner at Alholm and Monahan in Chicago, Illinois concentrating in professional liability defense. She received her mediator certification from the Mediation Institute of America and is on the panel of lawyers for the Chicago Bar Association Voluntary Mediation Program. Ms. Gitchell is a member of National Lawyers Association. Copyright © 1997 Rita Lowery Gitchell.