Don't Litigate, Mediate: Here's How

WMACCA Litigation Forum
Don’t Litigate, Mediate: Here’s How
© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

Michelle Cohen
Member, Ifrah PLLC
SPEAKERS
2
The Honorable Stanley P. Klein (Ret.)
Mediator, The McCammon Group
(and retired Fairfax County Circuit Court judge)
James T. Hubler
Senior Corporate Counsel, Verisign, Inc.

AGENDA
When to Mediate
 Basics
 Pros and Cons
 Determining Fit
Stages of Mediation
 Getting to the Table
 Preparation
 During Mediation
 Finalizing Agreement
Conclusion
 Final Thoughts
 Questions?
3© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

MEDIATION BASICS
Mediation Defined
Mediation is a voluntary, consensual process that uses a trained,
neutral third party to facilitate the negotiation of disputes. The goal
is to reach a binding settlement agreement.
Growing Popularity
Companies are increasingly turning to mediation to avoid further
litigation expenses and the uncertainty of litigation and to reach a
resolution.

WEIGHING THE PROS AND CONS
ADVANTAGES
 More Efficient
 Assistance of Mediator
 Less Formal, Adversarial
 Learn Opponent’s Perspective
 Confidentiality
 Free Discovery
DISADVANTAGES
 Costly if Protracted
 Effect of Trial Judge Mediator
 No Precedential Value
 Usually Non-binding
 Delays Discovery
 Free Discovery

MEDIATION SUCCESS
 $765MM mediated settlement
between the NFL and 4,500
players and families
 Nine-figure settlement seen as a
victory for the League
• Potential liability was much
greater
• Billions of dollars in liability
payments
• Damaging discovery process
 Faster resolution better for
players and families
6
TOUCHDOWN FOR THE NFL
AND THE PLAYERS ASSOC.

DETERMINING FIT
7
Employment Disputes
 Cost savings for company
 Quick payment for employee
 Avoids reputational damage of public proceeding
Consumer Claims
 Consumers often have inflated view of their cause
 Mediator can offer neutral perspective
Complex Litigation
 Consider at which stage mediation may be effective
 May need substantial discovery first
Is Mediation Right For This Matter?

CONFIDENTIALITY CONSIDERATIONS
8
Additional Considerations
Mandatory Reporting
 Corporate Reports
 Regulatory Filings
Potentially Shared with Trial Judge
 Pre-mediation discussions
 Parties’ attitudes about mediation
Governed by State Law
General Rules
 Materials and communications
 Mediated agreement
 Attorney work product
Frequent Exceptions
 Signed written waiver
 Evidence otherwise subject to discovery
 Certain subsequent proceedings
 Threats and criminal activity

GETTING TO THE TABLE
Mandated Mediation
• Pre-Dispute Agreements
• Court Ordered Mediation
• Post-Dispute Agreements

MEDIATION CLAUSES
Clauses Not Always Clear
 Is mediation permissive or
mandatory
 Is formal attempt required or
does informal suffice
 How is mediator chosen
Consider Trial Judge’s
Perspective
 Have you made good faith
efforts
 Be prepared to submit evidence
of good faith attempts
10
Interpretation and
Compliance

CHOOSING A MEDIATOR
Where to Start
 Solicit Recommendations
What to Consider
 Neutrality and Integrity
 Subject Matter Expertise
 Overall Experience
 Style and Individual Characteristics
 Geographic Convenience and Availability
 Cost
How to Evaluate
 Resumes
 Websites
 Reported Decisions
 Writings

ENGAGING THE MEDIATOR
Mediation Agreement
A Tool to Set Expectations and
Protect Legal Interests
 Explains mediator’s role
 Limits mediator’s liability and
provides indemnification
 Sets forth confidentiality of
communications and work
product

PREPARING FOR MEDIATION
Discussions Between Mediator and Parties
“All Hands” Conference Call
 Overview of dispute
 Review status of litigation and negotiations
 Written submissions
 Assure that parties’ decision makers will be present for mediation
 Schedule mediation
 Tie up loose ends
Pre-Mediation Caucuses with Mediator
 Ex Parte communications
 Discuss critical issues and barriers to settlement

PREPARING FOR MEDIATION
Attorney-Client Planning
Educate the Client
 Explain mediation process
 Outline their side’s strengths and weaknesses
Discuss Settlement Authority
 Get authority cleared as necessary
Set Realistic Expectations
 Length, cost, and likelihood of success
 Focus on risk assessment, not persuasion
Choose Participants
 Consider settlement authority, schedules,
personality styles, factual knowledge, and
expertise

PRE-MEDIATION SUBMISSION
The Mediation Statement
 Confidential
 Mediator May Set Parameters
 Factual Summary
 Law Summary
 Analysis and Arguments
 Settlement Discussions to Date
 Conclusion

ENTERING MEDIATION
Posture and Preparedness
Flexibility
 Whether to set a bottom line
 Be prepared for things to change
 Avoid arbitrary limit on duration of mediation
Good Faith
 Not traditional advocacy
 Client must comport themselves accordingly
 Special considerations if trial judge is
mediating
Be Prepared to Settle
 Have offer/counter-offer ready
 Come with a draft agreement

THE OPENINGS
Mediator’s
 Introductions
 Laying the ground rules
 Setting stage
 Establishing the tone
Parties’
 Show strength of your case
 Consider the audience
 Use of visual aids

NEGOTIATIONS
18
Strategies to Consider
Bargaining Posture
 Interest-Based (creative problem solving) or
 Positional (adversarial)
Initial Offer
 Don’t offer everything at the outset, but
 Avoid anchoring too far away
Movements Toward Settlement
 Small, incremental moves versus
 Split-the-difference approach
Sharing Information with Mediator
 To tell them your bottom-line, or not
 Equip them with hard questions for opponent
Overcoming Impasses
 What to do when bottom-lines don’t meet

EVALUATION STAGE
Parties Affected
 Multiple defendants
 Insurance companies
 Who pays what
Mediator Input
 Mediator must be neutral, competent, and
fully informed
 May not be appropriate in some cases
Full Scope of Implications
 Issue spot
 Ensure that client understands
19
What to Consider When
Considering Their Offer

NEGOTIATIONS
Settlement Offers
 Need sufficient authority to bind
 Understand what can be offered
• Monetary compensation
• Injunctive relief
 Design matter-specific relief
• Employment context
• Business disputes

FINALIZING
Agreement Reached
 Get It In Writing
 Outline key terms
 Be specific, avoid assumptions
 Co-defendant Agreements
 Confidentiality Considerations
No Agreement
 Decide when to terminate
 Arrange for follow-up

THANK YOU
QUESTIONS?

Don't Litigate, Mediate: Here's How

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