Shareholder David Ezra has been elected to the board position of Secretary/Treasurer to the O.C. Bar Association Alternative Dispute Resolution Section for 2016. In the one-year position, David will serve the third-largest voluntary Bar in the State of California, with over 6,600 members. The Alternative Dispute Resolution section holds meetings and education opportunities at least once per month and is a forum for the exchange of ideas, examination of trends in the field, and professional development of members interested in alternative dispute resolution. David will serve alongside Michael Balmages and Leslee Newman as 2016 Chair and Chair-Elect, respectively.
As part of an ongoing series of articles and columns on the Orange County Bar Association ADR section chaired by Berger Kahn Principal Lance LaBelle, a recent column by Berger Kahn Principal Dave Ezra was featured in Orange County Lawyer magazine, “The Mediator’s Nightmare: Am I the Most Unreasonable Party’s Advocate?” Featuring a detailed examination of the conditions in which challenges may arise in mediation and practical and scholarly tips for understanding this issue, Dave says:
“In a sense, the unreasonable party has spent the day “training” the mediator, convincing the mediator that nothing the mediator does or says will significantly influence the highly unreasonable party. The highly unreasonable party has “trained” the mediator to recognize that the only way the mediator is going to settle the case is by pushing very, very hard on the other side — the side that is reasonable and relatively more flexible.”
THE MEDIATOR’S NIGHTMARE:
AM I THE MOST UNREASONABLE PARTY’S ADVOCATE?
by David Ezra
Mediation is a great way to resolve disputes. Mediation affords the disputants a confidential setting and an experienced neutral whose only objective is to help them settle. What could go possibly wrong?
Experienced mediators know about a recurring problem that presents itself in varying degrees. While pushing hard to get a settlement, the mediator can’t help but notice that one party won’t budge. Meanwhile, the mediator works on the flexible party, getting them to drop the demand more and more, or increase the offer more and more.
In many ways, this problem comes with the territory. Standards governing mediation seem to universally call on the mediator to allow party self-determination, while remaining impartial. (See, e.g., Cal. Rules Ct., Rules 3.853 and 3.855.) At least in theory, mediators are not concerned with gauging the settlement terms’ fairness. Mediators succeed whenever two parties say “yes.” So there’s a built in incentive to move the party who is most easily moved.
But no mediator wants to feel that they pushed a reasonable party into a fundamentally unfair settlement. A “one-sided” mediation, where the mediator becomes a tool for a very stubborn party and ends up significantly moving the flexible party toward a heavily unbalanced settlement, is undesirable.
The problems go far beyond the mediator’s discomfort. A good mediator’s actual goal is not merely to achieve any agreed settlement. The mediator’s real objective is a lasting settlement that resolves the dispute once and for all. An overly one-sided mediation, where the mediator and a highly unreasonable party “gang up” on a reasonable party, may lead to a temporary “settlement” -- one that is particularly likely to unravel. Think about when you bought your car -- too often, parties who are “forced” into a one-sided deal quickly develop buyer’s remorse. When the mediator becomes a forceful advocate for a highly unreasonable party, the reasonable party may not be able to articulate it in the heat of the moment, but they may still sense that something went very wrong.
This means that in those (hopefully, very rare) instances where a mediator ends up working extra hard to move a very reasonable party toward a very unreasonable party in order to achieve a settlement, the final result is more likely to be an at-risk, or even temporary, settlement. From the mediator’s perspective, a “settlement” that falls apart is a Pyrrhic victory, if not an abject failure.
No one wants a “settlement” with an enhanced likelihood of unraveling. It is not good for either party. And it is not good for the mediator (or the mediator’s reputation). So what can be done to avoid a one-sided settlement where the mediator ends up aggressively advocating on behalf of a highly unreasonable party? What can be done to prevent the mediator’s natural tendency to achieve a settlement by pushing on the object that is most easily moved?
A word of caution -- numbers alone (and the mediator’s own settlement value assessment) -- can never tell the whole story. A plaintiff that starts with a high demand and makes big drops is not necessarily being any more reasonable than a defendant who starts very low and creeps up slowly. A defendant who has some small chance of winning a knockout summary judgment motion might be perfectly reasonable in offering very little money. If the defendant can afford to take the risk of losing the summary judgment motion and the plaintiff really can’t, a very low settlement may be better for the plaintiff than rolling the dice on the summary judgment motion, even if everyone thinks there’s a 90% chance of defeating the motion.
These risk-benefit dynamics do not turn a mediator into a weapon one party can use to the other’s detriment. An experienced mediator who knows the dispute’s subject matter (or one who asks the right questions) will usually be able to distinguish between aggressive but reasoned risk-reward calculations, on the one hand, and situations where an unreasonable party is using the mediator as a lethal weapon against a very soft target, on the other.
Judgment calls have to be made in highly nuanced, very complex situations. Typically, the mediator knows less about the case than everyone else who is involved. So a good mediator will not jump to the conclusion that movement by one side, coupled with the other side’s extreme resistance, means that the mediator has become the most unreasonable party’s advocate.
Most mediators start sessions with an open-mind, searching for virtually any path to settlement, and nearly 100% focused on achieving a binding and enduring settlement. The mediator initially has no idea whether any party is going resist movement to an extreme degree. After all, settlements typically require a reasonable degree of flexibility in both directions.
Particularly at the outset, mediators may feel like they are dealing with two very unreasonable parties. Often, all parties start mediation highly positional, overly cautious, and very slow to move. But in most successful mediations, the process ultimately works. Two parties that started with virtually stationary positions in the morning, somehow grow more flexible as the mediation goes on. By the evening, they have often both moved significantly, and settlement happens. When the parties reasonably value the case and demonstrate some degree of negotiating flexibility, a skillful and experienced mediator usually finds a way to settle the case.
But what should mediators do when they become convinced that they are not dealing with acceptable cost-benefit or risk calculations; convinced that an unreasonable party is using the mediator to drive the cost of settlement to unreasonable levels?
To maximize the chance of successfully resolving a dispute where one side has been very reasonable and the other has been just the opposite, a skillful mediator has to maintain awareness throughout the process. When the mediator expects a case to settle somewhere in the $250,000 ballpark, but finds the defendant offering only $7,500 at 6:00 p.m., that’s a sign. And when the plaintiff has dropped their morning $750,000 demand to $225,000 by 6:00 p.m., the mediator knows it is time to start wondering whether pushing the plaintiff further and further down is actually a productive activity.
In a sense, the unreasonable party has spent the day “training” the mediator, convincing the mediator that nothing the mediator does or says will significantly influence the highly unreasonable party. The highly unreasonable party has “trained” the mediator to recognize that the only way the mediator is going to settle the case is by pushing very, very hard on the other side -- the side that is reasonable and relatively more flexible.
Most mediation conduct standards call for mediators to “conduct a mediation based on principles of party self-determination.” The parties are to make a “voluntary, uncoerced decision” using “free and informed choices” as to outcome. Mediators applying these standards “shall not undermine party self-determination” for improper reasons, such as “settlement rates, egos, increased fees, or outside pressures . . . .” But others see fairness as a primary mediation objective. For example, standards governing family law mediation have long advocated fairness as a mediation objective.
Unfortunately, the model standards are too general to offer much practical, “real life” guidance. In real mediations, when a mediator starts to feel that things are too one-sided, and that any settlement that might be achieved would be so tilted that its permanency would be doubtful, the mediator needs to mention the elephant in the room.
A mediator could tell the entrenched defendant something like: “Look, we’ve been at this since 8:30 this morning and in ten hours you’ve moved from $2,500 to $7,500. The plaintiffs started at $750,000 and they think this case is worth at least $250,000 (which it just might be) but they would settle this for $225,000 today. We’ve been grinding them down all day. But I am now sensing that more grinding now might be counterproductive. You can get this settled very favorably tonight. But applying more pressure in the other room right now may not be the best way to go.”
Then the mediator assesses the reaction. If the reaction is, “Let’s cut to the chase. I think they’ll take something a little less than $200,000,” then the mediator has probably been dealing with a tough negotiator, but not a party that is wildly unreasonable. On the other hand, if the reaction is, “We could stay here three weeks and the offer would never go to $10,000,” then the mediator knows it might be time to consider alternatives to back and forth negotiating.
In the plaintiff room the mediator might similarly probe, suggesting that the defendant is not moving up to the level they want, and that unless the plaintiffs really need to settle tonight, this case may not be ripe enough to settle yet. The mediator then needs to listen and gauge the reaction. If the plaintiffs react by pushing the mediator to keep the negotiations going, the mediator may have missed something. Maybe the case isn’t as solid as it appears. Maybe that surgery everyone was so sure the plaintiff needed is not going to happen. Maybe the unreasonable party isn’t so unreasonable after all.
If the mediator isn’t talking about the elephant in the room, the attorney for the side the elephant is stepping on, should mention it. Calmly tell the mediator you and your clients are seeing a one-way negotiation that isn’t coming across as fair. Then gauge the mediator’s reaction. The mediator will confirm your perception and work to find a solution, or the mediator will tell you that your case isn’t as strong as you thought it was. Either way, you will have made it harder for the mediator to continue acting as a weapon for the most unreasonable party.
No mediator wants to be a tool for the most unreasonable party. But it occasionally happens. When it does, mediation participants need to call it out.
 David Ezra is a Shareholder with the Berger Kahn law firm in Irvine California. He has been mediating cases since 2005, when he received his ADR Certficate from UC Irvine and co-founded IDR Mediation Services.
 Some commentators are critical of standards that call on mediators to achieve fair results while remaining impartial as establishing standards that are often impossible to apply in many real life situations. See, e.g., Susan Nauss Exon, How Can a Mediator Be Both Impartial and Fair?: Why Ethical Standards of Conduct Create Chaos for Mediators, 2006 J. Disp. Resol. 387 (2006).
 Model Standards of Conduct for Mediators (AAA, ABA and ACR 2005)
 John Lemmon, Family Mediation Practice 198 (1985) (“While the mediator must be impartial as between the mediation participants, the mediator should be concerned with fairness.”).
Attorney Journal Features Principal Lance LaBelle in Attorney Journal for Speaking on OCBA Alternative Dispute Resolution Panel
Principal Lance LaBelle is proudly serving as the O.C. Bar Association ADR Section Chair for 2015, and was featured as a panelist at the annual ADR “Recent Developments” program, looking at reported cases, new legislation, and upcoming trends in important areas of Alternative Dispute Resolution.
Principal Lance LaBelle to Speak at Orange County Bar Association Panel on Alternative Dispute Resolution – May 6, 2015
Mediation, arbitration and private negotiation are all alternatives to the litigation alternative. The ADR Section of the OCBA sponsors an annual recent developments program that looks at reported cases, new legislation and anything trending on the horizon in these important areas of Alternative Dispute Resolution. The program materials contain detailed digests of the new cases and legislation coupled with a panel presentation that attempts to put these case and legislative developments in perspective in terms of where the law was and where it is going on important issues. We hope you’ll join Lance and Beki Callahan, along with their co-panelists at the 2015 Program scheduled for May 6th from 1 PM to 4:30 PM at the OCBA Building (4101 Westerly Place, Newport Beach), with a hosted debrief reception immediately following.
Attorney Journal Recognizes Principal Lance LaBelle for His Service to the Bar as Alternative Dispute Resolution Section Chair of the O.C. Bar Association for 2015
For his service to the Bar, Berger Kahn Principal Lance LaBelle was featured in the January edition of Attorney Journal as the 2015 Chair of the Orange County Bar Association’s Alternative Dispute Resolution Section.
Orange County Bar Association Names Berger Kahn Principal Lance LaBelle to Alternative Dispute Resolution Section Chair for 2015
Principal Lance LaBelle will become Section Chair for the Orange County Bar Association Alternative Dispute Resolution Section for 2015. A forum for the exchange of ideas, examination of trends in the field, and professional development of members interested in alternative dispute resolution, the section will explore numerous ADR topics throughout the year under the leadership of Berger Kahn Principal Lance LaBelle.
Principal Dave Ezra says there are some universal themes that can lead to the writing of a successful mediation brief which he explores in an article with Mediate.com.
“Like other briefs, a quality mediation brief starts with a careful evaluation of the audience. Who will see your brief? Who is making the settlement decision? Who are you trying to influence? Too many mediation briefs try to influence only the mediator. Every mediation is different. Every case has its own settlement personality. But there are recurring themes and issues that confront attorneys whose clients are heading to mediation.” Read more at mediate.com.
Writing a “winning” mediation brief
Attorneys get training and spend countless hours sharpening the skills needed to prepare a winning appellate brief, closing argument, or summary judgment motion. But most cases are settled — not won on summary judgment, at trial, or on appeal. In many cases it is the mediation briefs — the overlooked briefs that are often hastily prepared at the last minute — that most important briefs.
Like other briefs, a quality mediation brief starts with a careful evaluation of the audience. Who will see your brief? Who is making the settlement decision? Who are you trying to influence? Too many mediation briefs try to influence only the mediator. Every mediation is different. Every case has its own settlement personality. But there are recurring themes and issues that confront attorneys whose clients are heading to mediation.
Mediation briefs are often confidentially submitted to mediators, meaning the brief is notshared with opposing parties. A confidential mediation brief usually represents a missed opportunity. A defendant’s mediation brief should speak to the plaintiff’s attorney — convincing the plaintiff’s attorney that they’ve valued the case too high, or that some other risk factor makes settlement at a lower figure desirable. A well written, non-confidential brief can help the plaintiff’s attorney to reduce their client’s expectations before the mediation. This obviously increases the likelihood of settlement at a favorable price (from the defense perspective).
Similarly, instead of merely trying to influence the mediator, a plaintiff’s attorney can use a non-confidential mediation brief to enhance the probability of a favorable settlement. The plaintiff’s attorney can use the mediation brief to influence the defendant’s attorney and the defendant’s liability insurer.
In some instances, the mediation brief will address liability issues, damages issues, andcoverage issues. That mediation brief may be aimed at the defense attorney, the insurance adjuster, and even the insurance company’s coverage attorney — all audiences who may be critical to securing a favorable settlement.
A confidential mediation brief may give the mediator insight, but it does not help an insurance adjuster convince her supervisor that the covered claims should be taken seriously and the reserves should be increased before the mediation. Even if a confidential brief spectacularly articulates reasons why the defendant will probably be held liable and the damages award will be significant, it will do nothing to influence the defense attorney or the liability insurer that has to write the settlement check.
Like hitting a baseball, when it comes to mediation briefs, timing is everything. Especially where significant dollars are involved, it can be very beneficial to complete and distribute mediation briefs far in advance of the mediation. While an experienced mediator can get the brief the night before the mediation and be ready to go the next morning, the adverse party in your case may need a lot more time to work with the brief. Insurance adjusters may need a couple of weeks to schedule interim meetings to secure extra authority, or to get an opinion on coverage. That extra time may be critical to the mediation’s success. A brief in a complicated, high-dollar case served three weeks ahead of the mediation gives the adjuster time to work with coverage counsel and supervisors — time to secure the extra authority needed to settle the case. Even if it is substantively far superior, a brief served the night before the mediation, while the adjuster is on a plane heading to the city where your mediation will take place — is just another missed opportunity.
Defendants who are serving briefs on plaintiffs’ attorneys will also want to get the brief served long before the mediation starts. The brief may alert the plaintiff’s attorney to issues that need to be heavily researched or discussed with their client. The other attorney may need to consult with experts or obtain additional information to give the mediation the best chance of success. The extra lead time can be the difference between a settlement and a wasted mediation day.
Your brief may be very educational, but not fully useful, unless it is served early.
3. STRUCTURING THE “WINNING” MEDIATION BRIEF
What should a mediation brief look like? Good mediation briefs come in all shapes and sizes. While short and concise is typically preferable, lengthy mediation briefs that carefully analyze complicated fact patterns or case law can serve a useful purpose, particularly if they are served well in advance of the mediation.
Like most legal briefs, it is usually best to start with the big picture. The short introduction may take the most time to write. It has to convey a lot of information using relatively few words. It should be impactful, structure the reader’s thinking, and impart enough important information so that the reader can easily anticipate where the rest of the brief is going.
From the mediator’s perspective, briefs that start with a lengthy, detailed factual background — as opposed to a well-crafted introduction that provides a big-picture overview — are often the most cumbersome and least impactful. Any reader initially confronted with a litany of factual minutia faces an immediate challenge. Is each piece of factual information equally important? Is the date that the complaint was filed particularly pertinent in this case? Is the fact that it cost $105,000 to fix the Audi R8 going to impact the plaintiff’s damages? Does the fact that the insurer’s denial letter was sent on May 8, 2013 (or that the denial letter was 12 pages long) have something to do with whether the insurer acted in good faith? Is the fact that owners of 97 units in the 124-unit development sued important to some issue? Is the plaintiff’s date of hire important? Should I care that the plaintiff was fired by a supervisor? Should the V.P. have delivered the bad news?
When a mediation brief starts with an overly-detailed factual background, the reader has to guess which facts are important, and which facts are not so important. A reader who assumes that each fact is equally important struggles to make sense of too much information. The writer risks drowning the reader in a sea of minutia. To the extent possible, mediation briefs should start with an introduction that highlights the important issues in a way that arms the reader with a desired viewpoint and knowledge of the highlights. Then the reader can easily navigate the rest of the brief quickly spotting the most important information.
4. USING CASE LAW
Case law can make a gigantic difference in the outcome of a litigated case, and it can also make a big difference in what happens at a mediation. However, except for the most complicated cases, there are usually only one or two important judicial decisions that justify extensive discussion in a mediation brief. If there is a particularly helpful judicial decision that goes your way on an important issue, highlight that case and discuss it. Don’t de-value an important opinion by including it in a lengthy string cite, or mentioning as one of 45 cases your brief discusses.
If there is a particular case that seems to go against you, it is usually best to acknowledge the case and try to explain why it has a limited impact on the mediated matter. Citing only the positive case and ignoring the adverse case will probably send the wrong message to the mediator, and the wrong message to the adverse party. You are going to be in mediation all day. You know the adverse case is out there. Why not show the mediator and the opposing counsel that you’ve thought it through in advance of the mediation. While you recognize the adverse case has an impact, that impact is not as great as the other side thinks it may be.
If the other side knows about the adverse case, this is a no-brainer. And let’s face it — they probably have LEXIS too!
5. OTHER FACTORS THAT AFFECT SETTLEMENT VALUE
A brief that highlights special factors that can promote or hinder settlement can be very helpful for the mediator. It is true that you can discuss the special factors with the mediator during the mediation. But briefing special factors in advance can give the mediator an advantage going in. The mediating often starts before the mediation starts. In other words, pre-mediation phone calls between the mediator and the attorneys often start the negotiation process. So a brief that discusses special factors can be helpful for the mediator, and helpful to the process. For obvious examples, consider a plaintiff’s urgent need for money, or a defendant’s recent meeting with a bankruptcy attorney; things a mediator wants to know about before the mediation starts. This type of information can help a good mediator help the parties efficiently move toward a reasonable resolution.
Left unmentioned, special factors could backfire. If the mediator starts in the other side’s room, they can unwittingly say something that hinders settlement. For example, you represent a restaurant in an employment case, and you plan to argue that your client has no EPLI insurance and is struggling just to make payroll. But you don’t mention it in the brief because you can just tell that to the mediator when you convey your client’s $5,000 opening offer. But if the mediator starts with the plaintiff, the mediator might mention how packed it was when they had dinner at your client’s restaurant last Wednesday night — undermining the mediator’s ability to sell the “we have no money” argument you expected to be your central theme of the day.
The mediator always wants to see a brief history of any prior settlement negotiations in a mediation brief. Perhaps it goes without saying that a one-sided, argumentative characterization usually won’t be beneficial. For example, saying “the defendant started negotiations with a modest offer of $20,000 and the plaintiff countered with a demand of $250,000” is probably better than saying “the defendant threw out a low-ball offer of a paltry $20,000.” And it is better than saying “the plaintiff is so unrealistic that the opening $250,000 demand is not even in the same universe as what might actually get this case settled.”
Save the hyperbole for the actual mediation — that way the mediator can see that you are smiling when you make those over the top comments. And please — save the word “extortion” for the one or two actual extortion cases you might ever get involved in. Telling a mediator that the plaintiff is “extorting” money from the defense when she points out that it will cost $150,000 to defend the wrongful termination case through trial makes it sound like you don’t underestand your own chosen profession. At least that’s the way it sounds to someone you are paying to help you settle your case.
6. BONUS MATERIAL
An efficient use of exhibits is always a good way to spice up a mediation brief. In most cases, overloading a brief with numerous exhibits won’t be very helpful. It will water down the impact of the powerful exhibits. But picking a few key pieces of evidence that demonstrate your strengths (or the other side’s weaknesses) can add power to your brief. You’ve spent months (or even years) thinking about the case and analyzing all the documents. The mediator might have a grand total of 10 to 12 hours to devote to your case. He or she needs to quickly and fully understand the exhibit’s impact in order to use it to move the other side toward your number. Make it easy for the mediator by getting right to the point, and by using only the most powerful exhibits as part of the brief.
Charts, graphs or similar tools can be a great way to impart complex information quickly and efficiently. A well-edited set of videotaped deposition excerpts can tell a powerful story. Put the time in and make these extras influential — not just to your mediator, but to the other parties too.
7. CONCLUDING REMARKS
Most mediators will carefully study the concluding sections of mediation briefs. Often, the mediator gets a laugh out of that section. After reading 24 pages explaining why the plaintiff’s case has zero merit, how the defense is going to win a summary judgment motion, and why the cost bill the plaintiff will have to pay at the end of the process will bankrupt the plaintiff, the concluding section of the mediation brief says that “the defense will attend the mediation in a good faith effort to resolve the matter.” If that doesn’t bring a smile to your face, nothing will.
Some concluding sections are funny for a different reason. I have literally seen mediation briefs that end with this sentence — “For the foregoing reasons, summary judgment should be granted in favor of the defendant.”
Just as your mediation brief should not simply regurgitate the contents of the summary judgment motion, your conclusion typically should not completely divorce itself from the rest of the brief.
Remember one thing — mediators read the concluding sections of mediation briefs. Some might even read them first, before they look at any other part of the brief. So use the conclusion section of your brief to your advantage. Echo the main theme that you want the mediator to take into the mediation. That theme will vary from case to case. It will depend on the facts, the law, the stage of the case, prior negotiations, and the personalities involved. But if there is something you would like the mediator to have in mind during the mediation, make sure that one thing finds its way into your conclusion.
Too many mediation briefs are intended to do the bare minimum — merely acquainting the mediator with the case’s basic fact background. Figure out who you want to influence before you start your mediations, and use your mediation briefs to influence the decisionmakers. The results you get will be well worth the extra time you have to put in.