S P E C I A L F O C U S

A Client’s Guide toMediation . . . . . . . . . . . . . . . . . . . . . 30

BY LAWRENCE H. FLEISCHMAN

Mediation and Settlement Conferences . . . . . . . . . 36

BY DEV SETHI

M E D I A T I O N

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M ediation has become one of themost popular and most utilizedsystems of dispute resolution in

the United States. From an infancy thatbegan only a quarter century or so ago,mediation—sometimes called settlementconferences—is now an institutionalized andhighly popular way of resolving disputes.

Though there are many seminars, papersand books regularly written for mediators orwould-be mediators, there is precious littleto guide the poor souls who suddenly find

themselves in the midst of one. It’s badenough to find yourself in a lawsuit; if youare a normal human being the prospect ofnegotiating the settlement of the case can bea daunting one. Even for those who regular-ly participate in mediations, the opportunityfor confusion and misunderstanding—theopportunity to fail miserably in the task ofsettling the case—always exists.

Thus, I have here attempted to craft aquick and easy guide for theparticipant–client in a mediation. It is far

A C l i e n t ’ s G u i d e t o M E D I AT I O N

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from a scientific inquiry, and one that is like-wise very subjective. I have been settling civillawsuits for more than 20 years, and duringthat time I have often chided myself for notmaking sure that the most important partyto the process—the client—understandswhat the hell is going on. Indeed, the mosttypical reason for a failed mediation is thatthe client did not appreciate the process, gotconfused and frustrated, and walked out.And trust me, there is nothing worse than abad mediation to not only ruin your day, but

likewise your lawsuit. When thestakes are very high, your happinesswith life itself can be on the line.

Lawyers too might benefit fromsuch a primer. At the very least, thismay be something you can handyour client as you enter the greatadventure.

Therefore, in this article I speakto the client and the lawyer, eachjoined together in a unique endeav-or. And why not? For conversingwith this diverse audience is whatmediators do every day.

So here we go: The PoorRichard’s Guide to Attending aMediation and Not Only Surviving,but Prospering.

The ProcessFirst of all, mediation is a process,not an end unto itself.

It is designed to be an inexpen-sive and efficient way of getting tothe bottom of a lawsuit and negotiating aresolution. It provides the client with a realopportunity of having his or her case, andthat of their opponent, analyzed and exam-ined with the assistance of a mediator whohas the knowledge and experience to assist inunderstanding the good, bad and ugly of thelawsuit.

Mediation is also a negotiation.Unfortunately, even in the most tragic ofcases, mediation ultimately boils down to thebuying and selling of the lawsuit. It cansometimes feel like the buying and selling ofa used car, and if you are in a mediation andbeginning to feel that way, you are not alone.I am always concerned that clients, particu-larly those who are dealing with a cata-strophic loss, become disenchanted with theprocess because they truly are negotiatingthe value of that loss or that loved one.

The only answer to this is to understandthat mediation, and indeed thecourtroom, is society’s answer tothe vital process of resolving dis-putes. We cannot make thetragedy go away; we can only puta dollar value on that tragedy andattempt to resolve it.

This is not to say, however,

that mediation cannot be a cleansing experi-ence. There are no real rules in mediation;no one is going to stand up in the middleand shout “Objection–hearsay.” This meansthat clients have an opportunity to vent, tocry, to scream or shout, and to do so in apretty safe place—which can be a real bene-fit not only in settling the case, but in help-ing clients deal with the underlying tragedyand anguish.

Different mediators handle the process indifferent ways. Some believe in joint sessions,in which the parties and the lawyers sit downin front of the mediator and debate the mer-its of the case. I am personally against such aprocess. The few times I have used it I havefound that it drives people even farther apart.

I prefer to do what most mediators do,which is to have individual, private sessionswith each party. I will normally start theprocess by explaining to the party the gener-

G u i d e t o M E D I AT I O N BY LAWRENCE H. FLEISCHMAN

Lawrence H. Fleischman was a Pima CountySuperior Court judge from 1985 to 1997, and has beena full-time mediator and arbitrator since that time asprincipal of The Fleischman Law Firm. He likes to claimthat he has settled, at least twice, every lawsuit knownto humankind.

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al nature of the process. Sometimes I willstart with the plaintiff, sometimes with thedefendant, depending on the particulars ofthe case.

There are no requirements as to howmany times the mediator meets with you orthe other side. Nor are there any time limits.I personally feel that the faster we go, thebetter everyone feels about the process andthe easier it is to resolve the case. However,any experienced mediator will tell you thatwe usually spend hours discussing terms thatwill not resolve the case and minutes dis-cussing those that do. This is merely a reflec-tion of the fact that the mediation itself is anopportunity to examine and challenge theperspective of the parties.

Once there is general understanding ofthe ups and downs of the case, and both par-ties have pretty much accepted the analysis,it isn’t long before resolution is achieved.

The Mediator’s RoleTypically, there are three parties to a media-tion: the clients, their lawyers, and the medi-ator.

Good mediators care about two things:(1) controlling the process and (2) settlingthe case. Really good mediators also careabout that elusive but easy-to-smell thingcalled Justice, which sometimes ain’t badeven if it is administered with a small ratherthan a capital “J.”

Mediators want to control the processbecause they are, or should be, the experts inthe resolution of cases. Moreover, they areby definition the only objective party in theroom, and objectivity is a vital tool of anysuccessful mediator. After all, if you think themediator is in the pocket of the other side(or, what’s worse, in yours), you aren’tgoing to heed much of what he or she has tosay.

Objectivity, however, can hurt. Mostmediators are adept at delivering bad newsabout your position or your case in easy-to-swallow doses, but the biggest reason forheadaches in mediation is that the client maynot like the opinion being delivered.

Frankness about a position, however, isone of the most important reasons for suc-cess in mediations. A mediator is not theenemy; after all, the reason you hired thebastard in the first place is because you want-ed someone with experience and objectivityto measure the strength of your case.

Sometimes the mediator is not offering

his or her own view of a case, but merelyexpressing how the other side views theissues. There is an understandable tendencyin such cases to want to kill the messenger. Ihave found that it is sometimes very impor-tant for me to explain to the client that theviews being expressed are not necessarilymine, but those of the other side. Hopefully,this allows a person to avoid the tendency toget personal about something and listen towhat is being said.

Mediators want to settle cases becausethat is the reason they got into mediation inthe first place. Even today, after settlingmany thousands of lawsuits, I am nagged ifI can’t resolve a case, and assuring myselfthat it failed to come together because thecase was too difficult, or the parties unrea-sonable, really doesn’t help.

This desire to settle often can be per-ceived by clients to be a desire to settle at allcosts, even if it isn’t fair. I appreciate it ifclients express to me such feelings. It notonly gives me an opportunity to discuss theissue, but it also requires me to sit back andask myself whether the client just may beright.

This is where a mediator’s penchant forfairness may be challenged. I would be lyingif I didn’t say that over the years the oppor-tunity has arisen for me to settle cases underterms I didn’t necessarily think were fair toone of the parties. However, I have alsolearned that I am not omniscient and that Imay not always know the real reasons whysomeone will settle for what I think is less (ormore) than fair. There is no requirement fora mediator to know all or even any of thereasons why you may want to settle yourcase. If the mediator has been effective inassisting you in settling the mess, that mayvery well be enough.

Almost by definition, a case doesn’t settleif it isn’t acceptable to all parties. This iswhere justice with perhaps a small “j” ratherthan a large comes into play.

The Lawyer’s RoleBy the time you reach a mediation, lawyerand clients have hopefully had plenty of timefor a frank and complete airing of the issues.The rule is, and this doesn’t only apply inmediations, that if a client does not under-stand something about the case, it is notonly appropriate but it is their right to ques-tion the situation. One of the most impor-tant things to understand is that, if your

lawyer suggests that you should mediateyour case, this is NOT a sign that the lawyeris trying to sell you down the river. To thecontrary, mediation today has been adoptedby the court system as a primary means ofresolving cases. Chances are the judge willorder a mediation if your lawyer hasn’talready asked for one.

Depending on the personality and wishesof the client and the lawyer, counsel maytake very different roles in a mediation.Some lawyers tell their clients that they, andnot the client, are the only ones allowed tospeak while the mediator is present.

Generally, I think that is a lousy idea.This is your case, and mediators are veryinterested in hearing what you have to say.Indeed, often the other side can be affectedif a mediator, having had the opportunity toconverse with a client, can report that theclient makes a good impression and will beliked by a jury.

Of course, if your lawyer tells you thatyou shouldn’t speak up, you may want to askyour lawyer if he or she is concerned aboutyour ability to add to your case. If yourlawyer admits that there is a concern, thatdoes not necessarily mean that you shouldfire your lawyer. To the contrary, a lawyerwho is honest with the client about theclient’s abilities to succeed in litigation is alawyer worth keeping. Trouble occurs whenyour lawyer, while believing that you will notdo well in mediation or in front of a jury,nevertheless tells you only that which youwant to hear, and not that which youshould.

Having said that, however, your lawyermay not want you to discuss certain issues.This raises a question of the confidentialityof the mediation.

Almost every state, Arizona included, hasrules or statutes that mandate that state-ments made during mediation are confiden-tial and cannot be used in any legal proceed-ing. There are some small exceptions to thisrule, but the reason for confidentiality inmediation is because the process profits fromhonesty and frankness, and therefore confi-dentiality will apply.

Many people, however, don’t under-stand what can or cannot be said in themediation itself. The general rule is thatanything you tell the mediator during amediation is not confidential and can berepeated to the other side, unless youinform the mediator that what you are say-

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A Client’s Guide to Mediation

ing should not be communicated.I always begin my mediations with an

explanation to first-timers about this rule.Actually, most experienced mediatorsinstinctively know what can or cannot berepeated, but it is a good idea for yourlawyer to preface certain remarks with therequest that what is about to be said shouldnot be repeated.

If you are uncertain about whethersomething should be kept confidential, Iencourage you to still discuss it. There isno “gotcha” rule in mediation, whichmeans that if you say something that inhindsight you and/or your lawyer believesshould not be communicated to the otherside, it is perfectly fine to ask that the itembe kept confidential. It is better to err onthe side of communicating with the medi-ator, but you also must understand that ifyou don’t make it clear that you want tokeep certain things confidential, the medi-ator will presume that it is not confidentialand will act accordingly.

Many times the mediator will ask thelawyer to leave the room and “take a walk”with him or her. Don’t get nervous whenthis happens. There is usually a fairly remark-able level of trust between lawyer and medi-ator, and a private one-on-one is useful forthe lawyer to educate the mediator about

how you really feel about the case, or con-cerns the lawyer may have about the situa-tion that don’t necessarily need to be said infront of you.

Again, this is not a lawyer selling youdown the river. Rather, it is an opportunityfor your lawyer to provide the mediator witha roadmap to a successful mediation. Often,those private conversations represent themost important thing a lawyer can do foryou during the mediation. I have sometimeshad lawyers warn me that certain topics maybe off-limits for a client, and should not evenbe broached. This is very useful because thelast thing a mediator wants to do is upsetyou about something that ultimately will notassist in the settlement of the case.

Almost every mediation includes a dis-cussion of complicated issues of law betweenlawyer and mediator. I think it is a very goodthing for a client to listen in, and, if theywant, contribute to that discussion. Even ifyou don’t understand everything that isbeing said, it helps you to appreciate thelegal setting and arguments that affect yourcase. When that discussion is a frank onebetween lawyer and mediator, the client hasan opportunity to understand that it maynot be them, but the legal underpinnings oftheir position, that could have a deleteriousimpact on any litigated result.

One thing that a mediator is limited indiscussing, however, is the legal fee that yourlawyer is charging for the case. In Arizona,the law prohibits a mediator from negotiat-ing the legal fee between lawyer and client.The reason for this rule is because theprocess is designed to result in a resolutionbetween two disparate clients, and a media-tor’s interjection into a discussion of thelegal fee can ruin the mediator’s objectivity.If you want to discuss your fee with yourlawyer, the best thing to do is simply ask themediator to leave the room.

An important role for your lawyer, ofcourse, is to educate the mediator aboutyour case. Usually, this is done before themediation, in the form of a mediation state-ment that the lawyer has provided to themediator. Lawyers will often exchange medi-ation statements with the other side, aprocess I encourage because it ensures thatthe initial facts and positions have beenexchanged and accurately communicated.Sometimes your lawyer will also send a con-fidential statement to the mediator only,which will contain information that thelawyer wants the mediator, and not theother side, to know.

One of the most important thingslawyers do in mediation, of course, is choosethe mediator. There are a wide variety of fac-

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There is usual ly a fa ir ly remarkable level of trust between lawyer andmediator, and a pr ivate one-on-one is useful for the lawyer to educatethe mediator about how a cl ient real ly feels about the case.

A Client’s Guide to Mediation

tors that go into the selection of a mediator,but lawyers typically look for people who areexperienced in the practice of law, who havehad a great deal of time in front of juries(which often makes judges very attractive asmediators), and with whom they have hadsuccess in the past.

One thing that is often not necessary isthat the mediator be familiar with theunderlying subject matter of the litigation.Usually, it is more important that themediator be experienced in the process ofmediation and negotiation, and less impor-tant that they know the intricacies of anygiven subject. I have settled many cases inwhich I know practically nothing about thesubject matter of the lawsuit, a fact thatcan be heartily supported by scores oflawyers throughout our fair state andplaces beyond.

The Client’s RoleI’ve saved the best for last. The client’s role.

The client is by far the most importantperson in any mediation. Too often, this factis forgotten by both mediator and counsel.This is the client’s case. It is not the lawyer’scase, or the mediator’s case. A bewilderedclient is an unhappy one. It is vital that theclient understand what is going on. If you,the client, do not, then feel free to questionall and sundry.

Mediators are by and large a sturdy lot.There is not much we have not heard. Ifyou don’t like what’s going on, say so. Ifyou don’t understand what’s happening,question it. Even at the risk of riling the

mediator and your lawyer, you have a sacredright to speak up.

But by the same token, please rememberthat mediation is ultimately a compromise.Neither side will ever settle for the worstcase they could ever expect, and thereforeyou will not get the best case in settlement.

Mediation is about changing expecta-tions. Sometimes, you have been told byyour family and friends that yours is thebest case since sliced bread, and you sud-denly find yourself in a situation where youare being asked to settle contrary to all youthought possible. That is when the rubbermeets the road. If your lawyer and media-tor have been open and frank with you dur-ing the process, that uncomfortable feelingin the back of your head and the chambersof your heart is probably you changingyour mind. This is a good thing, because itmeans that the mediation has worked, andyou are confronting the realities of your sit-uation.

Some of this requires frank discussionbetween lawyer and client before the media-tion. If you start a mediation with a settle-ment demand scores above or below thetrue value of the case, one can only hope thatyou understand that this is merely a negotia-tion technique and not a true reflection ofwhat you might fetch at the end of the day.If you really believe the amounts being flungabout, the mediation will be an excellentopportunity for you to examine truthfullyyour position and ascertain if it is really a sen-sible thing to head into a trial.

This means that one of the client’s mostimportant jobs in a mediation is to listen.This is a wonderful opportunity to educateyourself about the ups and downs of notonly your case, but the realities of a jury trialas well.

I often wish that a client could be a fly onthe wall in the room of the other side whilethe mediator worked his magic. Even thoughit may feel like you are the only one beingasked to compromise, the fact is that no goodmediation, nor any good mediator, is suc-cessful if there is not a bilateral beating aboutthe head and changing of minds. Someclients even take offense if they feel the medi-ator is spending too much time with theother side. In fact, that is usually an indica-tion that the mediator believes yours is thebetter position and needs more time to con-vince your opponent of that fact.

There is usually an inordinate amount ofdowntime in a mediation. You may actually

want to bring a good book along. I suggestyou dress appropriately for what is, let’s faceit, probably the most important day of yourlawsuit. Most cases settle at mediation orshortly thereafter, and very few actually go totrial. Even if you are not acquainted withappropriate business attire, showing up inshorts and sandals probably sends the wrongmessage to everyone, including the mediator.

Finally, don’t be too disappointed if yourcase doesn’t settle at mediation. Sometimes itis necessary for the parties to return to medi-ation after important legal motions or dis-covery has been conducted, and often peoplesimply need to get away for a time to thinkabout what they have heard. I often settlecases in the days or weeks after a mediationby telephone, and never actually return to themediation proper.

The Joy of ResolutionSettling a lawsuit remains, for me, one of themost satisfying things there is. I have spokento people moments after the settlement oftheir case, and years after. Generally, I havefound that people are delighted by the factthat litigation—vexatious at best and poison-ous at worst—is finally over. Even when youfeel that you may have compromised morethan you wanted, the mere fact that you havesettled is a good thing. As time goes by, peo-ple usually come to terms with their feelingsabout their case and feel that getting it overwas the best thing they could have done.

When a case settles at mediation there isusually a short document that is prepared bythe mediator, which lists the main points ofthe settlement. The lawyers then prepare amuch lengthier document after the media-tion, a process that can sometimes take muchlonger than expected. Patience is a virtue atthis stage of the game, although I usuallystart pushing pretty hard if more than 30-45days have elapsed without the completion offinal paperwork.

Whether it takes this long to complete theprocess or not, mediation is a truly wonder-ful thing. For an overburdened judicial sys-tem, another case has been eliminated. Forthe client, an even more wondrous event hasoccurred. This lawsuit, which may have bur-dened and bothered you for years, is finallyover. You have been a participant in theprocess, not merely a helpless spectator. Youhave freed yourself from the tribulations oflitigation and have been able to get on withyour life. And as we all know, life is simply tooshort for anything less. AZAT

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