WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) 524-4140 /...

WMACCA Litigation ForumDon’t Litigate, Mediate: Here’s How

© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

Michelle Cohen Member, Ifrah PLLC

SPEAKERS

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The Honorable Stanley P. Klein (Ret.)Mediator, The McCammon Group (and retired Fairfax County Circuit Court judge)

James T. HublerSenior Corporate Counsel, Verisign, Inc.


AGENDA

When to Mediate Basics Pros and Cons Determining Fit

Stages of Mediation Getting to the Table Preparation During Mediation Finalizing Agreement

Conclusion Final Thoughts Questions?

3© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

MEDIATION BASICS

Mediation DefinedMediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes. The goal is to reach a binding settlement agreement.

Growing PopularityCompanies are increasingly turning to mediation to avoid further litigation expenses and the uncertainty of litigation and to reach a resolution.


WEIGHING THE PROS AND CONS

ADVANTAGES More Efficient Assistance of Mediator Less Formal, Adversarial Learn Opponent’s Perspective Confidentiality Free Discovery

DISADVANTAGES Costly if Protracted Effect of Trial Judge Mediator No Precedential Value Usually Non-binding Delays Discovery Free Discovery


MEDIATION SUCCESS

$765MM mediated settlement between the NFL and 4,500 players and families

Nine-figure settlement seen as a victory for the League• Potential liability was much

greater• Billions of dollars in liability

payments • Damaging discovery process

Faster resolution better for players and families

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TOUCHDOWN FOR THE NFLAND THE PLAYERS ASSOC.


DETERMINING FIT

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Employment Disputes Cost savings for company Quick payment for employee Avoids reputational damage of public proceeding

Consumer Claims Consumers often have inflated view of their cause Mediator can offer neutral perspective

Complex Litigation Consider at which stage mediation may be effective May need substantial discovery first

Is Mediation Right For This Matter?


CONFIDENTIALITY CONSIDERATIONS

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Additional ConsiderationsMandatory Reporting

Corporate Reports Regulatory Filings

Potentially Shared with Trial Judge Pre-mediation discussions Parties’ attitudes about mediation

Governed by State LawGeneral Rules Materials and communications Mediated agreement Attorney work product

Frequent Exceptions Signed written waiver Evidence otherwise subject to discovery Certain subsequent proceedings Threats and criminal activity


GETTING TO THE TABLE

Mandated Mediation• Pre-Dispute Agreements• Court Ordered Mediation • Post-Dispute Agreements


MEDIATION CLAUSES

Clauses Not Always Clear Is mediation permissive or

mandatory Is formal attempt required or

does informal suffice How is mediator chosen

Consider Trial Judge’s Perspective Have you made good faith

efforts Be prepared to submit evidence

of good faith attempts

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Interpretation and Compliance


CHOOSING A MEDIATOR

Where to Start Solicit Recommendations

What to Consider Neutrality and Integrity Subject Matter Expertise Overall Experience Style and Individual Characteristics Geographic Convenience and Availability Cost

How to Evaluate Resumes Websites Reported Decisions Writings


ENGAGING THE MEDIATOR

Mediation Agreement A Tool to Set Expectations and Protect Legal Interests

Explains mediator’s role Limits mediator’s liability and

provides indemnification Sets forth confidentiality of

communications and work product


PREPARING FOR MEDIATION

Discussions Between Mediator and Parties“All Hands” Conference Call Overview of dispute Review status of litigation and negotiations Written submissions Assure that parties’ decision makers will be present for mediation Schedule mediation Tie up loose ends

Pre-Mediation Caucuses with Mediator Ex Parte communications Discuss critical issues and barriers to settlement


PREPARING FOR MEDIATION

Attorney-Client Planning Educate the Client

Explain mediation process Outline their side’s strengths and weaknesses

Discuss Settlement Authority Get authority cleared as necessary

Set Realistic Expectations Length, cost, and likelihood of success Focus on risk assessment, not persuasion

Choose Participants Consider settlement authority, schedules,

personality styles, factual knowledge, and expertise


PRE-MEDIATION SUBMISSION

The Mediation Statement Confidential Mediator May Set Parameters Factual Summary Law Summary Analysis and Arguments Settlement Discussions to Date Conclusion


ENTERING MEDIATION

Posture and Preparedness Flexibility

Whether to set a bottom line Be prepared for things to change Avoid arbitrary limit on duration of mediation

Good Faith Not traditional advocacy Client must comport themselves accordingly Special considerations if trial judge is

mediating

Be Prepared to Settle Have offer/counter-offer ready Come with a draft agreement


THE OPENINGS

Mediator’s Introductions Laying the ground rules Setting stage Establishing the tone

Parties’ Show strength of your case Consider the audience Use of visual aids


NEGOTIATIONS

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Strategies to ConsiderBargaining Posture

Interest-Based (creative problem solving) or Positional (adversarial)

Initial Offer Don’t offer everything at the outset, but Avoid anchoring too far away

Movements Toward Settlement Small, incremental moves versus Split-the-difference approach

Sharing Information with Mediator To tell them your bottom-line, or not Equip them with hard questions for opponent

Overcoming Impasses What to do when bottom-lines don’t meet


EVALUATION STAGE

Parties Affected Multiple defendants Insurance companies Who pays what

Mediator Input Mediator must be neutral, competent, and

fully informed May not be appropriate in some cases

Full Scope of Implications Issue spot Ensure that client understands

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What to Consider When Considering Their Offer


NEGOTIATIONS

Settlement Offers Need sufficient authority to bind Understand what can be offered

• Monetary compensation• Injunctive relief

Design matter-specific relief• Employment context• Business disputes


FINALIZING

Agreement Reached Get It In Writing

Outline key terms Be specific, avoid assumptions

Co-defendant Agreements Confidentiality Considerations

No Agreement Decide when to terminate Arrange for follow-up


THANK YOUQUESTIONS?


WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) 524-4140 /...

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Transcript of WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) 524-4140 /...