Mediation. For some lawyers, it is a great way to spend a day; for others, it is an interminable bore, and ineffective to boot. It is easy to imagine that lawyers who have had successful mediation experiences are more likely to fall into the former category than the latter. What is more certain, however, is that mediation skills are increasingly important for a litigator to have, for a number of reasons. Unfortunately, most lawyers, especially Biglaw attorneys, are left to fend for themselves when it comes to developing those skills. That is a shame, as the importance of being able to mediate successfully has only grown in today’s business climate. More generally, negotiation skills remain under-taught in law schools and by law firms, and as a result are underdeveloped in many lawyers.
Any chance a lawyer has to develop their mediation skills should be seized. As an intellectual property litigator, all of my cases originate in federal district courts, and throughout the country, almost every case schedule includes mediation (or some other form of alternative dispute resolution) as a distinct event. Where on the schedule the mediation occurs, and whether it is held before a magistrate judge or local certified mediator, is usually up for negotiation between the parties. What is important is that mandated mediation is on the schedule. As a result, just as litigators need to know how to handle a discovery motion in a particular court, so should they be prepared to make the most out of whatever mediation process their case calls for. Interestingly, mediation has become an important part of appeals as well, including at the U.S. Court of Appeals for the Federal Circuit, a familiar forum for patent litigators like myself….
For all of the glory bestowed on trial lawyers, and rightfully so due to the difficulty of effective trial advocacy, the overwhelming majority of cases settle. This is especially true for the types of cases handled by many Biglaw attorneys, whether they be white-collar matters or securities class-action defense. Intellectual property disputes are no exception. Increasingly, mediation presents one of the key opportunities for getting a case settled. Because clients are demanding greater fidelity from their outside counsel to litigation budgets, achieving successful results via mediation could mean the difference between getting repeat business or blowing through a litigation budget unnecessarily (resulting in a “one-and-done” engagement that benefits the originating partner temporarily, but fails the rest of the partnership going forward). While the trial lawyers may always get the acclaim, litigators who are able to get rid of their client’s cases through mediation are just as likely to get repeat business and referrals.
As with most litigation skills, effective communication is at the heart of a skillful mediation performance by a litigator. The process starts within the litigation team, through frank discussion of the critical facts in the case, whether they be positive or negative. Because mediation frequently occurs while discovery is ongoing, there is an element of uncertainty as to what facts can ultimately be “proven,” whether at trial or via summary judgment. Nevertheless, confronting all of the facts of the case is very important, even if that means assuming that your opponent will have no problem bringing forth all of the negative aspects of the case before the factfinder. Better to assume such a situation, and craft your mediation strategy accordingly, than to assume that you will be able to keep all the bad facts out. In the typical Biglaw scenario, the necessity of internal communication often means that partners need to “learn” the case from the more junior attorneys who may be closer to the discovery process. As a result, it is often advisable to have the most knowledgeable junior lawyer attend the mediation, to act as a factual resource.
The internal communication is just a prelude to the external communication that occurs in the context of a mediation, namely with opposing counsel, their client, and the mediator. Starting with the latter, external communication often starts with the mediator selection process. Once a mediator is selected, the initial contact with the mediator presents an opportunity to gauge the mediator’s style and comfort level with the type of case. It also provides insight into the mediator’s preferred approach and ground rules for the mediation itself. In addition to pre-mediation discussion in some form, most mediators require, at some point prior to the mediation itself, a written mediation statement. This document, if drafted properly, informs the mediator of the relative importance of the case to your client, as well as the elements a settlement may need to contain.
In my experience, mediation statements that focus more on the business context of the dispute, and the client’s settlement posture as a result of that context, are more effective than statements that focus on the legal questions presented by the dispute. In many respects, the content of the mediation statement is driven by the audience. If it is just the mediator, then I usually try to present my client’s view of the case from a business perspective in full, and candidly disclose what my client would need to see included in any settlement. If opposing counsel will have an opportunity to review the statement, then a little more discretion may be necessary in terms of laying out settlement positions in advance of the mediation itself. Either way, the contribution of a strong mediation statement to a successful mediation can’t be overstated.
One of the more interesting things about mediation is the opportunity it presents for relatively informal, but direct, communication with opposing counsel — and, in certain mediation situations, their client. In many respects, your best opportunity to show your resolve on behalf of your client directly to your adversaries is at mediation. Depending on the situation, there may be opportunities for a little grandstanding that would inappropriate in a courtroom or in a deposition setting. What can be more fun than showing the other side that you are better prepared than their counsel to take the case the distance, but are willing to be reasonable in the interests of getting the case resolved before everyone needs to leave to catch their flights home? Considering that most mediations take the better part of a day, minimum, you are actually also engaging in a long-form audition for potential referrals from opposing counsel. Ultimately, being agreeable, tough but fair, and prepared goes a long way to creating a good impression in the minds of the mediator, opposing counsel, and even their clients. A thoughtful approach to the entire process can only help to making it a success. Mediation matters, even for those who wish it did not.
Next week, I will focus on how mediation presents an opportunity for strengthening your relationship with a client, and the importance of effective client communication in securing a successful mediation result.
Please feel free to send comments or questions to me at [email protected]. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. He can be reached at [email protected].