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Getting the other party
to the mediation table can be a challenge. Sometimes,
the opposing party may have been ordered to ADR and, therefore, may merely
intend to 'go through the motions of ADR.'
In such case, the opposing party may "attend" but not be a real
and authentic participant in the ADR process. How can you increase
the other party's motivation for ADR?
Below are some ideas for
increasing motivation of the other party.
"Why
are you suggesting mediation?" The wide spread use of ADR has
also brought with it suspicion: "Why do you want to mediate and why
with this mediator?" One defense oriented suspicion has been
referred to as "Litamediation" (see Lande, Alternatives,
April, 98). "Litamedition" refers to the practice of bringing a
lawsuit with no intent of going to trial but rather to extract money from
a defendant(s) in the eventual court-ordered mediation. From the
plaintiff perspective, there is a parallel suspicion that the mediation is
suggested by the defense as an easier way to offer get a defense-friendly neutral to proposes
"nuisance" costs as a settlement amount.
Suspicion about ADR and
mediation is rampant. Can your opposing party accept that you are
really proposing mediation so that all parties have a better understanding
of the conflict and settlement options, and make better decisions?
Don't
assume similarity. Do not assume that the other party thinks
like you, or makes decisions like you. In order to negotiate an agreement for
ADR,
you will need to understand their needs and expectations (both client and
lawyer). You then can determine whether you can find an ADR
process that meets all participants' needs.
"People want buy,
not be sold." If this
maxim is true, you should not design an ADR process and then sell it to
opposing counsel. Rather,
co-design the ADR process with the opposing party. As
a co-designer, the opposing party is more likely to be committed to the
process. In such a
co-design meeting, parties can conduct a conflict assessment, assess informational needs,
identify party negotiators, set a preliminary schedule for actions,
discuss confidentiality and the use of neutrals.
Use conflict
assessment as an introduction. One
way to start the process of negotiating ADR is to undertake a conflict
assessment with your client, and to share the conclusions with
your opposing counsel. Under
Rule 408 or an agreement for settlement discussion, this
information should be protected.
Moreover, the conclusions of a conflict assessment are not likely to be
the type of material that is relevant to later use at trial.
Use a neutral,
possibly in a neutral convening format.
You may consider using a neutral to assist in the conflict
assessment and to make an ADR process recommendation to both
parties. Ideas from the
neutral on ADR may be more likely accepted by the opposing party, and a neutral
convening is a simple way to accomplish this! It is a direct, and
relatively inexpensive, way to assess ADR options.
Informal and voluntary
discovery builds trust. Often
if your client holds information deemed important to the opposing party,
the voluntary and early disclosure of that information (beyond the
disclosure
required as "initial disclosures" under Rule 26) can (1) build trust and (2) remove uncertainty and
mystique from the lawsuit. Where you
suspect (a) that your opponent believes that certain relevant information
will be useful and (b) that its eventual disclosure is likely, consider offering prompt and early disclosure
of it to incent
the opposing party to come to the negotiating/ADR table.
Informal discovery agreements can provide for faster disclosure,
and limit use of such information while ensuring ultimate availability of
information that would otherwise be available in civil discovery.
Offer an ADR
agreement. In some
circumstances, you can propose initial ADR agreements that, although
limited in scope, will build trust
and demonstrate a commitment to explore settlement. Such
early agreements can provide for:
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Staying litigation,
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Suspending
formal discovery and implementing informal discovery,
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Exchanging
technical information, and
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Providing for enhanced confidentiality of
settlement discussions and planning.
Incentives.
Where a party is reluctant to participate in ADR, it may be appropriate,
in some cases, to offer incentives to participation in the process.
Examples:
-
Mediation or
advisory opinion. If approved by the neutral, your party may offer
to cover the majority or all of the neutral's fees.
-
Mediation,
advisory opinion or neutral fact-finding. If the other party
feels strongly about their likelihood of prevailing, you may also
agree to some form of "semi-binding" ADR (such as an
agreement that the costs/fees of the ADR process can be awarded as
"costs" by the court or arbitrator).
-
Advisory Opinion.
You can agree that an "advisory opinion" may be admissible in evidence in any
later hearing.
Technical teams.
For complicated cases, more than a simple data exchange may be necessary. You
may need to set up a process whereby experts can confer to reduce
unnecessary conflict and focus settlement discussions. Agreements
covering technical and informational exchanges can address each party's
information needs, protection, methods of exchange, meetings (confidential
and protected) among experts/consultants, timing for exchanges and
meetings, and later requests/use for the information if settlement fails.
Agreements
can be tailored to permit consultations among testimonial experts during
the ADR process without
losing/compromising their ability to later testify at trial if necessary.
Keeping the other
party at the table. Using
phased process (breaking the process in to phases that can be accomplished
in reasonable time intervals with established goals) can let each Party get accustomed to the
process, and become more likely stay involved.
Additionally, counsel can try to find times to meet one-on-one with
opposing counsel to work to anticipate upcoming challenges and
resolve/mitigate them early.
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