Streamlining Complex Mediations Requires Realism and a Roadmap

As an in-house attorney for an insurer, I was once mired in a mediation that dragged on for 13 years. It involved a series of defense and cost-sharing negotiations between a company that manufactured asbestos-containing products and about 30 of its insurers. The parties labored to strike a long-term deal to resolve decision-making and divvy up financial obligations on thousands of asbestos cases going forward.

Despite the multiplicity and knottiness of the items in play, the time and expense incurred in this mediation could have been substantially trimmed. To streamline complex mediations, consider the following guidelines.

Choose a realistic destination pre-mediation. Before the mediation begins, a party should decide its optimal destination, such as where it wants to end up on the myriad relevant issues. It first must identify key factors and internally vet its chances of success on each based on applicable law, the facts, and any other issues that tilt bargaining power.

The party should then rank the issues in order of financial impact and importance, both to the entity and to its adversaries. Doing so will identify areas where there may be some wiggle room. Knowing what you may give up is as important as knowing what you need to get.

Create a roadmap before and during mediation. Once the party knows what it wants, it must decide how to get there. The roadmap will likely evolve over time as the mediation unfolds. Here are three suggestions to help you get where you want to go.

First, identify and attempt to resolve the simplest issues earlier in the mediation. Working out easier issues promptly reinforces cooperation through success and provides necessary momentum to the mediation process.

Second, consider humanizing yourself. Sharing stories or employing humor can defuse a fraught situation and get a potential mediation trainwreck back on track. For example, in one mediation, an attorney irritated multiple parties by refusing reasonable compromises while repeating, “That doesn’t scratch my itch.” To calm troubled waters, another attorney dug up and played for the group the Slim Harpo blues classic, “Baby Scratch My Back.” After a few chuckles, the mediation corrected its course.

Another example involved an almost-daily, four-month negotiation in which I negotiated language on a dense asbestos bankruptcy agreement with a policyholder’s counsel. What could have been a ponderous or even insufferable process was lightened, because we got to know each other by sharing aspects of our personal and family lives. The mutual respect that developed lent an air of calmness when we disagreed on some of the thornier issues and helped us reach an agreement that satisfied both of our clients.

Third, always keep a few issues you’re willing to concede in your back pocket so they can be strategically employed. There comes a time in every lengthy mediation when your opponent may feel it has compromised too much, and judicious concession on such issues may alleviate those concerns.

Choose the mediator wisely. The 13-year mediation described above suffered from poor mediator choices. The parties only reached a final agreement with the help of their third mediator. In hindsight, the poor first two choices cost the parties substantial time and money. Although choosing a mediator is always difficult when multiple parties are involved, following some guidelines will help you select an effective one.

Look beyond reputation. Although a mediator may have an excellent resume, a great pedigree, and past success, their renown may have been based on simpler cases that involved very different issues. Even worse, the mediator may be drafting on past success.

For example, one the unsuccessful mediators in the 13-year case privately asked each party to suggest a numerical value for a major issue in the case, and then merely averaged the results to arrive at a mediator’s proposal.

In another complex environmental case, a big-name mediator, ignoring deeply divergent issues for three insurers and all the arguments advanced over two days of mediation, indolently proposed a one-third equal split.

To avoid these pitfalls, dig deeply to find out whether a mediator is conscientious, and what their facility is with all the issues that will emerge in the mediation. Because the best mediators anticipate how issues, witnesses, and documentary evidence will play out at trial, ensure that your mediator has experience in the kind of case to be mediated. If you fail to do so, you won’t get your money’s worth.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

John D. Moore, a retired Connecticut Superior Court judge, is a member of the alternative dispute resolution practice at Pullman & Comley, focusing on mediation and arbitration of civil disputes.

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