This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.

Number 7: Not Doing Your Homework

You have to know your case in and out to represent a client properly in a mediation. How else can you effectively manage your client and also discuss the issues with the mediator? You are counting on the mediator to make sure the other side understands and appreciates your positions. You may not be able to look under every single rock that can derail a mediation (or even know how many rocks are out there), but you better have identified in advance the key factors that will impact settlement. This homework must include a frank evaluation of future legal fees and costs. I have on more than one occasion as a mediator angered lawyers by challenging their low ball evaluation of legal costs and expenses in front of their client.

The mediator will also expect that you have done your homework. If you have not, you (and your client) will lose credibility with the mediator if she brings up those rocks in front of you and your client for the very first time. You will also lose face with your client if he turns to you and says “what was that all about” when the mediator leaves your room. When it comes time to close the deal, it is vital that the client still has full faith and confidence in your advice.

To help you think through those rocks, use your draft mediation statement as a guide, even if you carve off some parts before you send it to the mediator. It is also very important to send any draft and final statement to your client. This also helps prepare the client. If you get something from the other side, send that to your client (you may need to send it to your client Team, even those who are not coming to the mediation). Having the client read the other side’s arguments in black and white always helps prepare the client to make the difficult business decisions about settlement. The client’s homework should include an evaluation of not just legal fees and costs, but the time and effort from key employees that will be necessary if the dispute is not settled. This is especially vital if the client has never been through a complicated commercial dispute before. Does the client really want its key employees spending hundreds of hours with the lawyers, or trying to sort through project documents (and deal with e-discovery production)?

That homework should also include calling the mediator in advance of the mediation. Recall this is not binding arbitration, but structured settlement discussions. Let the mediator know confidentially about the rocks on both sides. That can include your candid assessment of the other side’s lawyers, and even issues with your own client representative. Every mediator appreciates and covets that type of advance information which can help him hit the ground running when the mediation begins.

Read numbers 8, 9, and 10 on the list.

This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.

No. 9: Not Having a Pre-mediation Call With the Other Lawyer and the Mediator

So, you have done your research and feel comfortable about the jointly selected mediator. You have an agreed date for mediation. Do you then just send in the confidential mediation statement and show up on the date? No.

Set up a call with the mediator (many good mediators insist) and opposing counsel and talk through the many issues that can derail a mediation. Consider the following, all of which you could address in a pre-mediation counsel conference call with the mediator.

Do you need information or documents from the other side? It can infuriate mediators when, in the middle of a mediation, they hear one side use an excuse that it does not have some information (or a document) necessary to make a decision and the other side does not have immediate access to such documents.

Do you agree to exchange all or some parts of the mediation statement? Discuss with opposing counsel what you plan to do and what you expect from the opposition.

It is also crucial to know who will attend. If the party representatives hate each other or you know that the other representative is not the decision-maker and may be covering himself because he screwed up the deal, a pre-mediation call can be essential. If insurance is involved, will the insurance adjuster (where the money will be coming from) be present? It is a bad way to start off a mediation when the lawyer shows up without the insured (who may not care because he’s not paying for the defense) or without the adjuster (who has 235 other cases) but whom the lawyer promises will be “available by phone” on the West Coast (but then disappears late in the afternoon when that side needs some additional authority to get the deal done).

The lesson is that the more you learn from a pre-mediation call with the mediator and counsel, the more time and attention you can devote to the real factual and legal issues in dispute during the actual mediation.

To be clear, great mediation advocacy is not the most important element in getting a deal done, but it can be a major factor.

Read No. 10 on the list.