HCBA Lawyer Magazine Vol. 28, No. 3 | Page 32

MeDiation in anD out of “the boX”
Construction law Section
Chairs: Ryan Baya - Mills Paskert Divers & Derek Kantaskas - Carlton Fields
Preparation, open
communication, and
persistence are keys to
successful mediations.
P
reparation is a key
element in successful
mediations. The
complexity of the case
will determine early pre-mediation
consideration of issues such as
discovery, nonparty attendance,
important pending motions, and
liens (government, medical,
insurance, worker’s comp, mechanic
liens, or worker’s liens in
construction cases). For example,
the mediator (with all approving)
can assist in setting important
motions in advance of mediation,
especially where long trials are
expected. Moreover, early meetings
with counsel and their clients can
establish a sense of rapport between
the mediator, parties, and counsel.
Counsel can include key
witnesses in person or by phone,
Skype, or otherwise. In my
experience, non-party experts
such as accountants, doctors, and
engineers allow counsel and parties
to better assess likely outcomes
within the safe environment of
confidentiality and privilege.
Multi-party cases, especially
construction cases, can involve
staggered sessions. An example
would be a large project with
conflicts among the owner,
contractor, sub-contractor,
sub-sub-contractor, insurance
carriers, agents, and attorneys.
This situation can require separate
mediations at different times
30
© Can Stock Photo / iqoncept
among parties with similar interests,
possibly involving more than one
mediator. Scheduling all entities at
one session would be nightmarish
for everyone and unlikely lead to
complete settlement.
Open Communication
involving counsel and parties
during the open and subsequent
sessions often sets the stage
for settlement. Respectful and
courteous dialogue around the
table can allay the anger,
resentment, and fear invariably
accompanying litigation and help
lead to agreement. Subsequent
joint sessions can lead to a
collaborative environment.
Acknowledgement or apology
for mistakes, miscalculations, and
perceived insults does wonders for
overcoming resistance to settlement.
Separate meetings with the
mediator and counsel, individually
and together, encourage less
confrontational communication,
overcoming settlement barriers.
Persistence on the part of the
mediator can prevent a stalemate
from becoming an impasse. Avoid
“take it or leave it,” “I’m done,”
and “final offer.” By allowing
your mediator to be persistent,
impasse can be avoided. When
an agreement has been reached,
it is critical that it be reduced to
writing immediately. The mediator
should oversee the drafting of all
agreements. Drafting issues can be
handled then and there. Whenever
possible, never end a mediation
until final agreements are signed.
Mediators abhor impasse. So
don’t force them into it. Agree
to continue a mediation to avoid
impasse. Attorneys and parties
usually want the cases settled and
conflict ended, thereby avoiding
expense, stress, and distraction
from family, business, and personal
endeavors. The mediator should
follow up within a month of an
apparently unsuccessful mediation,
as people often have “non-settlement
remorse.” Cooperate with the
mediator on follow-up phone calls
or meetings. In my experience,
up to 50 percent of these cases
settle after follow-up.
Although preparation, open
communication, and persistence
are the keys to successful
mediations, always be prepared for
“mediations within the mediation,”
where there are issues among a
particular set of parties or conflicts
between counsel.
Bottom-line:
Empower your
mediator!
Author:
Steve Cheeseman
– Stephen C.
Cheeseman, P.A.
JAN - FEB 2018 | HCBA LAWYER