The Next Big Thing: Improving Civil Mediation Practice and the Case for Mediation Optimization Orders

Regardless of your civil litigation practice area, your clients face difficulty getting the case to trial. Administrative orders are abundant in efforts to address the COVID-related backlog. Mediation is an obvious exit ramp on the crowed interstate of civil litigation.

Compared to trial advocacy, mediation advocacy is also underappreciated for a host of reasons, and mediation preparation is often inconsistent. This is true for several reasons. First, confidentiality and privilege rules attendant to the process make it impossible to record and critically review brilliant advocacy and abysmal failures in mediation. There is no audio or video record, nor a feedback mechanism. Careers and the reputation of counsel are not publicly made or broken based on mediation results. Settlement rates are not viewed as a measure of talent or “good lawyering”.

Second, mediation lacks drama. No one gets to claim a moral victory in mediation. But private and public interests are greatly improved by early and durable settlement agreements.

Furthermore, there is comparatively little teaching of dispute resolution in private practice; there are few opportunities, much less requirements, to learn mediation advocacy and dispute resolution in law school. No “best practices” in advance of mediation are imposed by court order, and mediation culture within lawyers is little more than unexamined habit and ritual.

Because knowledge of substantive and procedure is of little value in mediation and because the process requires less investment of time and money, lawyers and clients might view mediation as a casual detour from the path of litigation. Yet only one percent of filed cases go to trial. In Florida and elsewhere, mediation “happens” almost every case, and it is commonly reported that 60%-80% of the cases settle at mediation or soon thereafter.

For many reasons and despite the efficiency of the process, mediation lies far too often in the “dark shadows” of trial. (See L. Riskin and N. Welsh, “Is That All There Is – The Problem in Court Ordered Mediation,” 15 Geo. Mason L. Rev 863, 900 June 2008). In reality, mediation is not alternative resolution; it is, statistically speaking, the primary means of resolution.[1] Those attending trial after months or years of litigation are truly statistical outliers, yet there is a trial-centric culture that pervades despite the rarity of its occurrence.

If an impasse at mediation were treated as the moral and legal equivalent of mistrial, wouldn’t everyone work harder to avoid that result? Bad and unprepared trial lawyers get your attention because they are subject to critical review by the court, clients and colleagues. Ineffectual and counter-productive attorneys serving as poor mediation advocates are shielded from criticism by virtue of the confidentiality rules. How do you police much less correct abysmal mediation advocacy in a confidential black box?

It is a simple thing for the courts to ensure better mediation preparation without impinging on the right of self-determination that underlies the process. Mediation Optimization Orders (MOOs) are a nudge[2] in the right direction.

 Defining the Elements of a Mediation Optimization Order

A MOO serves as list of best practices for the court to adopt and focuses on communication prior to mediation.[3] The mediation order elevates and focuses attention on the mediation process by having the look and feel of a trial order. By using a premediation order, events are placed on the trial lawyer’s calendar, thus garnering the attention of all parties and clients.

Substantively, a MOO is mostly suggestive: to identify and possibly eliminate commonly occurring impediments to settlement that can be cured before the mediation session is convened (e.g., lack of key-decision makers, inadequate disclosure of damages evidence). For the busy and task-saturated litigator and client, preparation for mediation in the absence of an Order is inconsistent because mandatory trial-process-related activity occupies the trial lawyer’s calendar and is therefore a higher priority.

A good Mediation Optimization Order should include a number of suggested conversations between counsel of record and pro se litigants, and, where applicable, insurance carriers, and other non-parties critical to the process. A Mediation Optimization Order would:

1. Provide a date for disclosing the name and address of each attendee, and their relationship to each party.
2. Require counsel to discuss a) selection of the mediator; b) timing of mediation in relation to needed discover; c) informational needs of each party; and d) nature and breadth of the disputes to be mediated.
3. Direct counsel and pro se parties to schedule a premediation conference call with the mediator to address the scope of mediation and to educate that person on any important personal or business relationships relevant to the process.
4. Urge counsel to discuss the non‑economic terms that may be the subject of discussion at mediation (e.g., scope-of-work release, anti-disparagement, third-party release language, agreement not to initiate governmental investigation, etc.).
5. Require the parties to disclose any non-party who may be in attendance such as expert, advisor, or consultant. Counsel would be obligated to articulate true objections to non-party participation, if challenged, and ask for judicial intervention for disputes regarding appropriate attendees.
6. Require the lawyer to explain to the client the mediation process, the role of the mediator, and confidentiality rules.
7. Require the lawyers or pro se parties to discuss the need for foreign language translators.
8. Require the defense attorneys, clients, and carriers in multi-party cases to collectively caucus 20 days prior to mediation to consider insurance coverage availability and coverage issues, funding arrangements, and distributive shares of payment that may be negotiated in the context of trying to resolve the claim(s). The order would note that Intra-defendant meetings in advance of mediation are highly effective for identifying potential informational gaps and positional disagreements.
9. Require all counsel to submit a premediation statement to the mediator with a copy to opposing counsel. Attorneys would be encouraged to conduct a premediation conference with the mediator. The submittal should be written so that the client’s position is shared with all parties and written for the opposing client’s eyes, not merely for the mediator. This is an opportunity to directly communicate a message conducive to settlement.
10. Urge the participants to test all internet connections and to ensure high quality audio and visual means of participation for remote attendance.
11. If there is an impasse at the first mediation session, the parties are directed to schedule a second mediation at a mutually agreeable date before the close of discovery.

The Mediation Optimization Order can be found here. It’s yours to download.

Concluding Comments

Mediation Optimization Orders engage the parties in thoughtful and timely preparation to begin a transition to collaborative problem-solving, and to promote critical information sharing relevant to negotiations and deal-making in advance of mediation. Timeframes and suggested dates for premediation communication in the Order will change from case to case to account for the complexity of cases, geography, the number and variety of parties and interests, and the existence of necessary non-party attendees. In most cases, a second mediation is warranted prior to trial.

The likelihood of settlement by a well-designed mediation is very high. A Mediation Optimization Order helps the parties eliminate the impediments to a successful mediation by execute a premediation game plan aimed at eliminating potentially avoidable problems and misunderstandings that contribute to impasse.

[1] The word “alternative” as an adjective modifying “dispute resolution” is misplaced and rightly describes resolution by trial. The Florida Bar should rename the Trial Lawyers Section the “Committee for Rarely Occurring Events” and eliminate the “A” from the name of the ADR Section.

[2] I use “nudge” in the way intended by the behavioral economists R. Thaler and C. Sunstein in their book “Nudge: Improving Decisions about Health, Wealth and Happiness” Yale Univ. Press 2008)

[3] See D. Henry, “The Case for Mediation Optimization Orders,” For the Defense, March 2012, at pg. 57