by Hon. Judith Gail Dein
Preparing for a mediation is one of the hardest things a litigator can do, but one of the most rewarding. Having focused on the strengths of your case, it is now time to be more objective and think about compromise. It is also time to think beyond the boundaries of the law, and to consider your client’s practical needs and goals. Mediation can be very rewarding because it is an opportunity for the litigants, the ones most affected by the outcome of a case, to help fashion a resolution, and realistically consider their options. It is also an opportunity for the lawyers to listen to, work with, and guide their clients to an acceptable solution to a problem – which is why they came to you in the first place.
I have served as a United States Magistrate Judge in Massachusetts for the last 24 years. All civil cases in the District of Massachusetts have the option of mediating at any stage in the litigation, but it is not required. Magistrate Judges serve as mediators for cases in which they are not one of the assigned judges, and they do not share anything with the trial judge except whether a case settled. I have learned that no two cases are the same, and neither are any two mediators. What follows are factors you may want to consider in deciding whether to mediate and preparing for the mediation. While the questions may be the same for many different cases, the answers will be undoubtedly very different.
Deciding when and how to mediate
First, consider when in the life of the case would it be best to mediate. Many factors can be considered, but the fundamental question, assuming the litigant has enough resources to continue with the litigation, is usually when is there sufficient information to visualize the potential outcomes if the case goes to trial. Some cases are appropriate for early mediation if the issues are reasonably clear, and discovery will not significantly alter the parties’ general understanding of the facts. Others, for example, need expert discovery before the issues are clear enough for the parties to be in a position to compromise. Clients (and lawyers) need to be prepared to put the case behind them even though there are more facts to learn.
Having decided to mediate, the next question is what you are looking for in a mediator. Each mediator brings a different personality, style and expertise. Traditionally, mediators are described as either being “evaluative” in that they express their opinions on the merits of the dispute, or “facilitative” in that they work with the parties to reach a resolution that the parties find acceptable, regardless of the mediator’s opinion as to the merits of the case. In reality, most mediators use both approaches depending on the mediation’s progression (at least I do, I start off facilitative, but may be more willing to express an opinion on the merits as I hear more from the parties).
If court-sponsored mediation is an option, you should consider whether private or court-sponsored mediation is best for your case. Questions to be considered include whether an appearance before a judge, as a mediator, would give your client their day in court and help resolve the matter, or would your client be more vested in the process if there was a cost to the mediation. Private and judicial mediators may have different time constraints and areas of expertise. It is important, however, to find a mediator whose approach you, and more importantly, your client, respects.
You should also determine whether a remote mediation is an option and, if so, whether you would prefer to proceed remotely or in person. This, in turn, usually requires an assessment of who should attend the mediation and where those participants are located. If you represent an individual, consider whether they might benefit from the support of another person, such as a family member or friend. If so, clear their attendance with the mediator and opposing party to be sure that the presence of a third-party does not invalidate the confidentiality of the mediation. In the case of a business or insurance company, it is important, in fact imperative, to have the person with the decision-making authority either present throughout the entire mediation (which is preferable) or easily accessible by phone. In mediations, like the rest of our post-Covid work-life, there are pros and cons to proceeding remotely. In my experience, there is not a big difference in settlement rates between remote and in-person mediations, although in-person mediations are more personally satisfying and give the mediator the opportunity for informal side-conversations which cannot take place remotely.
If proceeding remotely, make sure your client is comfortable with the format. Technical difficulties are not only frustrating, but are stressful for the litigant, putting them at a disadvantage before things even get started. Remember, as the saying goes, “practice makes perfect.”
What to tell the Mediator
Each mediator has different requirements for pre-mediation communications. In my court, the Magistrate Judges generally require a brief written mediation statement and hold preliminary conferences (sometimes with each side’s counsel separately) shortly before the mediation. These communications provide the mediator with a working knowledge of the facts of the case and the relevant law, and, more importantly, an understanding of the dynamics of the case, including the relationships between the parties, between opposing counsel, and between the clients and their counsel. The mediator is looking for a pathway to resolution. The hardest part for the mediator is the beginning, when the mediator must quickly assess the participants and determine the best approach going forward. The more help you can give the mediator ahead of time, the better.
Unless the mediator indicates that they want a complete analysis of the case (for example, in an expressly evaluative mediation), counsel should aim for a concise and well-organized written statement with a limited number of exhibits. Statements can be very effective in shaping the direction of the mediation. They should focus on the facts and not be a dissertation on the law unless the legal issues are critical to resolving the dispute. Information about prior settlement discussions and a party’s position on settlement are very helpful. While parties are often reluctant to disclose their top or bottom settlement number on paper, having some sense of the value range helps the mediator guide parties to a resolution. And as I always tell the parties – I reserve the right to ask them to offer more and take less than they originally contemplated.
Before the mediation begins, counsel should try to agree on fundamental facts and damage components. For example, if lost wages or employee benefits are at issue, counsel should try to agree on the amount of those wages or benefits. Similarly, amounts contemplated under a contract should be agreed upon in advance, leaving to the mediation the issue of entitlement to those amounts. If there are multiple contracts in the case, counsel should try to agree on which contract is controlling. If agreement on such issues cannot be reached, it is helpful to explain such disputes in the mediation statement.
Finally, mediation statements or pre-mediation calls should include suggestions for how to make the mediation session more efficient and productive. For example, if there are multiple parties, it is helpful to know which ones should be grouped together. Similarly, while it is customary for the mediator to speak with the plaintiff first, a different order might make sense in a given case. Insights into how best to conduct the mediation are generally welcomed (if not always followed).
Opening Statements
Mediators differ on whether to have opening statements at the mediation. I very rarely allow opening statements as I have found that counsel cannot help but extol the virtues of their case and the problems with the other side’s – thereby widening the gap instead of narrowing it. Nevertheless, I recognize that there are always exceptions to the rule. If you do make an opening, make sure that it is not inflammatory and emphasize that you are there to listen and to work together to resolve the dispute.
Settlement Agreements
If you or your client use a standard form settlement agreement, you should bring it to the mediation. You should consider what non-monetary terms you want in a settlement agreement. For example, confidentiality and non-disparagement terms may be highly controversial in one case, and routine in another. If these issues are significant to your client, inform the mediator early in the mediation. After a long, hard mediation, it is difficult to address these types of issues at the eleventh hour.
Preparing your client
Lastly, but perhaps most importantly, it is critical that you prepare your client for the mediation. Unless the client has experience mediating, it can be a daunting experience. Unlike watching their attorney argue in court, participating in a mediation puts the client in the spotlight. Therefore, the client should understand the process. Mediations often take many hours, and there is a lot of down-time when the mediator is talking to the other side. Also, the mediator may point out weaknesses in the case, or explain the risks of litigation, in a way that the client has not heard before. Mediation can be intense, with the litigant being asked to absorb a lot of information. The better prepared the client is, the more likely the client will be able to hear and understand their options.
Similarly, it is important for counsel to have discussed with their client what the client hopes to accomplish with the litigation. As I started off saying, mediation is not about winning or losing. It is about reaching a resolution that makes sense for the parties. Counsel must understand their client to help guide them in the mediation.
Judge Dein was appointed as a U.S. Magistrate Judge in July 2000, after more than 20 years as a civil litigator focusing on employment and commercial litigation. After her third term as a Magistrate Judge expired in July 2024, she went on “recall” status with a reduced case load. However, Judge Dein continues to serve as a mediator for the Court. She has handled hundreds of mediations over the years.
