In last week’s column, I discussed the importance of external communication during the mediation process in securing a favorable result for a client. Many of the people who wrote to me as a result of last week’s column agreed with my general premise that mediation is an important skill for the contemporary litigator, and that mediation’s importance will only continue to grow.
A primary driver of that growth will be the continued desire of clients to reduce litigation costs. More and more, clients are recognizing the value of mediation as a means of resolving disputes early and with certainty. Accordingly, those same clients are looking to their outside counsel to guide them through the mediation process, and it is safe to assume that how outside counsel fares at that task could be a crucial factor in terms of a client’s willingness to send that lawyer more business….
The importance of client communication in the mediation context can’t be overstated. At bottom, mediation is a rare opportunity for a litigator to get to the heart of the business objectives a client hopes to achieve through the litigation process. Especially for those of us who grew up in Biglaw, opportunities to hear directly from the client about why they are litigating and what they hope to achieve are rarer than one would think. Quite frankly, depending on the seniority of the in-house person responsible for the matter, the client’s own representative may not know exactly what the aims of the litigation are. Mediation, taken seriously (as is necessary when it is court-mandated, for example), presents an opportunity to understand why your client is in litigation in the first place, and what needs to be a part of any settlement in order for the company to agree to a deal. In short, it is a fantastic opportunity for the litigator to truly act as a counselor. It is a rewarding feeling, in my experience.
I have been lucky to have had the opportunity to represent a number of companies at mediation. The sophistication of those clients with respect to the mediation process has varied, as has the size of the company, though the majority of them have been large multinational corporations. In every instance, going through mediation on their behalf has been both a great bonding experience with in-house counsel or company executives, and a significant learning experience as to how corporations evaluate claims in litigation. In every case, honest and direct communication with the client was critical.
Mediation can be a great bonding experience with clients of all sizes. As is typical for Biglaw litigators, I have handled significant matters for corporate clients for years without ever speaking to the general counsel. There are many reasons for that, but usually it is because the client’s general counsel trusts that their internal patent counsel, or litigation counsel, is handling the matter properly. Again, such a situation is normal. When mediation rolls around, however, it becomes extremely likely that at least a pre-mediation conversation will happen that will include the general counsel or management, or both. Talking with management and the general counsel presents an opportunity to make my in-house contact look good, in terms of praising their handling of the case, and their management of my team as outside counsel. As importantly, it is an opportunity to talk frankly with the decision-makers about the strengths and weaknesses of the case, and share my judgment as to what a reasonable settlement might look like. Conversations like that are as affirming for a litigator as the solid handling of a court hearing. They are also necessary predicates to any successful mediation, as it is impossible to mediate productively without a clear set of parameters from the client regarding acceptable settlement terms.
Just as the pre-mediation strategic discussions with a client help cement a bond, so does the actual mediation itself. As a patent litigator, most of my cases are outside of New York City, and as a result I have handled mediations in a number of “foreign” jurisdictions, before local mediators who themselves have strong ties with the court my case is pending in. Sometimes, they are employed by the court directly or indirectly, and sometimes they are just respected local practitioners. Most of the time, the parties, clients in tow, travel to the jurisdiction for the mediation itself. While I could do a series of columns just about traveling with clients, or other lawyers for that matter, the salient point is that mediation often presents a rare opportunity in a case to spend uninterrupted time with a client. It may be easy to dismiss that fact as a minor one, but it is hard for me to ignore the fact that such a situation is one of my best chances to create a favorable impression in my client’s mind. In some respects, mediation may be the best chance I have to show them how I approach their problems, and to work with them on trying to arrive at an immediate solution.
Just as important as the pre-mediation and mediation-day interactions are the post-mediation interactions with the client, irrespective of whether the case settled at mediation or not. I have gone into mediation with clients whose sole goal was to plant seeds regarding future settlement terms. In other words, they had no intention of settling at mediation unless they received a “no-brainer” offer, but saw the mediation as an opportunity to get the other side thinking about what my client wanted to see in a settlement. On other occasions, I have been instructed by my client to try and settle the case that day if possible, usually because of other extenuating circumstances that were making my client question the value of ongoing litigation. Most times, clients go into mediation with an open mind, and even if the case does not settle that day, substantial progress is made that blossoms over time into a crafted resolution. The circumstances always differ. The constant? Communication with the client — serious, thoughtful, goal-oriented communication. That alone makes mediation a worthwhile activity in my book. Actually getting a result that your client likes, even as they understand that most mediated settlements are at least a little painful for both sides? Even sweeter, and I can guarantee you will be excited for your next opportunity to mediate. I know I am.
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].