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WMACCA Litigation ForumDon’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) / ifrahlaw.com
Michelle Cohen Member, Ifrah PLLCSpeakers Michelle Cohen Member, Ifrah PLLC The Honorable Stanley P. Klein (Ret.) Mediator, The McCammon Group (and retired Fairfax County Circuit Court judge) James T. Hubler Senior Corporate Counsel, Verisign, Inc. © Ifrah PLLC (202) / ifrahlaw.com 2
AGENDA When to Mediate Stages of Mediation Conclusion BasicsPros and Cons Determining Fit Stages of Mediation Getting to the Table Preparation During Mediation Finalizing Agreement Conclusion Final Thoughts Questions? 3 © Ifrah PLLC (202) / ifrahlaw.com
MEDIATION BASICS Mediation Defined Growing PopularityMediation 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 Popularity Companies are increasingly turning to mediation to avoid further litigation expenses and the uncertainty of litigation and to reach a resolution. 4 © Ifrah PLLC (202) / ifrahlaw.com
Weighing the Pros and ConsADVANTAGES DISADVANTAGES More Efficient Assistance of Mediator Less Formal, Adversarial Learn Opponent’s Perspective Confidentiality Free Discovery Costly if Protracted Effect of Trial Judge Mediator No Precedential Value Usually Non-binding Delays Discovery Free Discovery 5 © Ifrah PLLC (202) / ifrahlaw.com
MEDIATION SUCCESS TOUCHDOWN FOR THE NFL AND THE PLAYERS ASSOC.$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 6 © Ifrah PLLC (202) / ifrahlaw.com
DETERMINING FIT Is Mediation Right For This Matter?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 7 © Ifrah PLLC (202) / ifrahlaw.com
CONFIDENTIALITY CONSIDERATIONSGoverned by State Law General 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 Additional Considerations Mandatory Reporting Corporate Reports Regulatory Filings Potentially Shared with Trial Judge Pre-mediation discussions Parties’ attitudes about mediation 8 © Ifrah PLLC (202) / ifrahlaw.com
GETTING TO THE TABLE Mandated Mediation Pre-Dispute AgreementsCourt Ordered Mediation Post-Dispute Agreements 9 © Ifrah PLLC (202) / ifrahlaw.com
MEDIATION CLAUSES Interpretation and ComplianceClauses 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 10 © Ifrah PLLC (202) / ifrahlaw.com
CHOOSING A MEDIATOR Where to Start What to Consider How to EvaluateSolicit 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 © Ifrah PLLC (202) / ifrahlaw.com 11
ENGAGING THE MEDIATOR Mediation AgreementA 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 12 © Ifrah PLLC (202) / ifrahlaw.com
PREPARING FOR MEDIATIONDiscussions 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 13 © Ifrah PLLC (202) / ifrahlaw.com
PREPARING FOR MEDIATIONAttorney-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 14 © Ifrah PLLC (202) / ifrahlaw.com
PRE-MEDIATION SUBMISSIONThe Mediation Statement Confidential Mediator May Set Parameters Factual Summary Law Summary Analysis and Arguments Settlement Discussions to Date Conclusion 15 © Ifrah PLLC (202) / ifrahlaw.com
Entering mediation Posture and Preparedness Flexibility Good FaithWhether 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 16 © Ifrah PLLC (202) / ifrahlaw.com
The Openings Mediator’s Parties’ Introductions Laying the ground rulesSetting stage Establishing the tone Parties’ Show strength of your case Consider the audience Use of visual aids 17 © Ifrah PLLC (202) / ifrahlaw.com
NEGOTIATIONS Strategies to Consider Bargaining Posture Initial OfferInterest-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 18 © Ifrah PLLC (202) / ifrahlaw.com
EVALUATION STAGE What to Consider When Considering Their OfferParties 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 19 © Ifrah PLLC (202) / ifrahlaw.com
NEGOTIATIONS Settlement Offers Need sufficient authority to bindUnderstand what can be offered Monetary compensation Injunctive relief Design matter-specific relief Employment context Business disputes 20 © Ifrah PLLC (202) / ifrahlaw.com
FINALIZING Agreement Reached No Agreement Get It In WritingOutline key terms Be specific, avoid assumptions Co-defendant Agreements Confidentiality Considerations No Agreement Decide when to terminate Arrange for follow-up 21 © Ifrah PLLC (202) / ifrahlaw.com
THANK YOU QUESTIONS? © Ifrah PLLC (202) / ifrahlaw.com
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