REPRESENTING CLIENTS IN MEDIATION:

A TWENTY-QUESTION PREPARATION
GUIDE FOR LAWYERS

KAREN K. KLEIN∗

A well-tried case stems from a well-prepared case. Likewise, a well-

settled case stems from good settlement preparation. Good trial results and
good settlement results don’t just happen; both require diligent, thorough
preparation. Yet, counsel often approach settlement casually and almost
impetuously, while at the same time methodically and thoroughly preparing
for trial. Preparation for trial will not adequately prepare counsel or the
client for settlement. This article, which is based on the author’s nearly
twenty-five years of experience as a judicial mediator, identifies twenty
issues an attorney representing a client in mediation should address in
preparing for the settlement discussions. Appended to this article is a
condensed list of these guidelines that attorneys can use in thoughtfully
preparing themselves and their clients for mediation. Conscientious consid-
eration of these issues by counsel on both sides of a dispute should
significantly enhance their prospect of fruitful negotiations.

1. Problem Solver or Adversary?

Many lawyers are most comfortable with traditional persuasive
negotiations in which they argue their client’s case and tear down the other
party’s case in an effort to persuade the other lawyer. The experience they
have accumulated in the traditional negotiation setting does not transfer
directly to the ever-expanding mediation setting for settlement discussions.
Mediation incorporates an advocacy role for lawyers, but not in the same
adversarial vein as litigation or traditional negotiations. In mediation the
goal is not to win the argument, but to search for a mutually satisfactory and
beneficial solution that meets both parties’ needs and interests. A number
of commentators have termed the skill set needed by lawyers to effectively
represent clients in mediation as “problem-solving advocacy.”1 The goal in

∗
J.D., 1977, University of North Dakota School of Law. Judge Klein serves as the Chief
Magistrate Judge for the United States District Court, District of North Dakota. Since her appoint-
ment to the bench in 1985, Judge Klein has conducted mediation proceedings in hundreds of civil
cases.
1. See Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client
Representation, 10 HARV. NEGOT. L. REV. 103, passim (2005) (explaining the genesis of
878 NORTH DAKOTA LAW REVIEW [VOL . 84:877

problem-solving representation is different from “winning”2 and may lead

to more satisfaction for the client than a “win” at trial.3 Problem solving
requires a collaborative approach in which lawyers work “with their clients
instead of for their clients.”4 Some lawyers naturally shift gears and
become problem solvers in mediation, while others either do not recognize
the need to shift their focus or have trouble letting go of the adversarial
cloak. In this author’s experience, lawyers who take a problem-solving
approach to settlement and partner with their clients, rather than posturing
for their clients, achieve more satisfactory results for the clients in
mediation.5 Recognizing the distinction between these two representation
models and trying to adopt a problem-solving mindset is a first step for
lawyers who wish to represent clients in a mediation setting.

2. Pre-Mediation Communications With Client

Good settlement preparation should begin with the initial client inter-
view.6 The client likely will bring to the meeting preconceived notions and
opinions about the merits of the dispute, including the value of the claim.
Also, the client will have impressions of the litigation system and of the

Abrahamson’s book, MEDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVING

PROCESS (2004)); see also Carrie Menkel-Meadow, Toward Another View of Legal Negotiation:
The Structure of Problem Solving, 31 UCLA L. REV. 754, passim (1984) [hereinafter Menkel-
Meadow, Toward Another View] (outlining a systematic approach to negotiating in a problem-
solving framework); Carrie J. Menkel-Meadow, When Winning Isn’t Everything: The Lawyer as
Problem Solver, 28 HOFSTRA L. REV. 905, passim (2000) [hereinafter Menkel-Meadow, Winning]
(offering that a problem-solving approach to negotiation requires expansive thinking, unlimited by
traditional legal mindset).
2. Menkel-Meadow, Winning, supra note 1, at 906.
3. Client satisfaction with mediation rests in large part on a sense of “procedural justice or
fairness,” which stems from the clients’ opportunity to participate in the process and be heard on
their own terms, whether or not the case settles. Robert A. Baruch Bush, “What Do We Need a
Mediator For?”: Mediation’s “Value-Added” for Negotiators, 12 OHIO ST. J. ON DISP. RESOL.
1, 20-21 (1996); see also Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on a
Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL 885, 886-98 (1998) (analyzing
various factors contributing to party satisfaction with mediation); J. Brad Reich, Attorney v.
Client: Creating a Mechanism to Address Competing Process Interests in Lawyer-Driven
Mediation, 26 S. ILL. U. L.J. 183, 186-96 (2002) (contrasting lawyer and party preferences for
type of mediation process and satisfaction with process).
4. Jacqueline M. Nolan-Haley, Lawyers, Clients, and Mediation, 73 NOTRE DAME L. REV.
1369, 1375 (1998).
5. In a study in which lawyers rated the effectiveness of the negotiating style used by other
lawyers, researchers found that 75 percent of negotiators using a true problem-solving approach
were rated as effective by their peers, but over 50 percent of adversarial negotiators were rated as
ineffective. Of those adversarial negotiators who used unethical tactics, only 25 percent were
rated as effective. Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence
on the Effectiveness of Negotiation Style, 7 HARV. NEGOT. L. REV. 143, 196 (2002).
6. Menkel-Meadow, Toward Another View, supra note 1, at 801 (citing DAVID A. BINDER &
SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING (1977); THOMAS L. SCHAFFER &
JAMES R. ELKINS, LEGAL INTERVIEWING AND COUNSELING IN A NUTSHELL (1976)).
2008] REPRESENTING CLIENTS IN MEDIATION 879

settlement process, gained from personal experience in prior litigation, from

news reports of large verdicts, from “reality” TV, or from fictional repre-
sentations.7 The lawyer should inquire into the client’s motivations for
deciding to litigate, the client’s impressions of the legal system, and the
client’s expectations. The way the lawyer handles his or her early meetings
will affect the client’s impressions and expectations, for better or worse,
either by reinforcing pre-existing notions or creating new ones. In the same
way that initial impressions of new people we meet tend to stay with us, a
lawyer’s early expressions about a case may strongly influence the client’s
future attitude. Unrealistic client expectations that go uncorrected in the
initial meeting, or worse, are created through the lawyer’s own representa-
tions, are difficult to reverse later in the process. The more the lawyer
understands the client’s motivations and expectations, the better opportunity
the lawyer will have to overcome unreasonable client impressions.
Understandably, a lawyer, particularly one who is striving to build a
practice and gain new clients, may hesitate to criticize a client’s motivations
or to diminish the client’s expectations, for fear the client will see such
negativity as a sign of disloyalty or weakness in the lawyer, rather than a
sign of unreasonableness in the client’s own views. This concern is
legitimate, but it should not lead the lawyer to over-promise what the
lawyer and the legal system can realistically produce for the client. Of
course, the lawyer does not necessarily want to discourage a potentially
good client so much that the client seeks legal representation elsewhere, but
over-promising can also cause problems. Over-promises ultimately lead to
a disappointed, disgruntled client who will blame the lawyer for unmet
expectations, rather than to a client who understands and accepts reality.
Acknowledging how the client might have reached such high expectations,
yet gently and firmly refocusing the client to a more realistic plane, will
ultimately serve both the client and lawyer better than allowing unreason-
able expectations to persist. A client who refuses to acknowledge the
potential existence of an alternative reality will likely be dissatisfied with
the outcome of the litigation and may blame counsel for the perceived
failure. Counsel should attempt to forestall this potential development early
in the attorney-client relationship.

7. This exposure causes the client “to conceptualize a case as a morality tale,” a matter of
good versus evil, with the lawyer “fighting” for the client’s cause. Robert Rubinson, Client
Counseling, Mediation, and Alternative Narratives of Dispute Resolution, 10 CLINICAL L. REV.
846, 866 (2004); see also Jean R. Sternlight, Lawyers’ Representation of Clients in Mediation:
Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 OHIO
ST. J. ON DISP. RESOL. 269, 320 (1999) (showing that the client vision of the lawyer’s role as
“gladiator” causes tension in lawyer settlement discussions).
880 NORTH DAKOTA LAW REVIEW [VOL . 84:877

In addition to discussing reasonable expectations with the client at the

first meeting, the lawyer should lay the groundwork for settlement by
explaining the overwhelming likelihood of resolution of any case by
settlement rather than trial.8 The public hears more about trial results than
settlements and generally is unaware that only one to two percent of civil
cases are resolved by trial.9 New clients may feel angry and be driven by
their emotions. They often expect a trial to vindicate their position and
satisfy their emotional needs and expectations. Again, a gentle but firm
reality check is in order. Satisfactory trial results are often an illusion.
Settlement may provide an earlier and even better result for the client.
Mediation also offers an opportunity for the client to take a direct role in
resolution of the dispute.
A primary feature of mediation as a dispute resolution process is active
involvement by the client.10 Mediators generally assume that since the par-
ties and their lawyers have decided to engage in mediation as their chosen
dispute resolution process, both the parties and the lawyers are prepared for
the process. Unfortunately, this is not always the case. Mediators, myself
included, commonly encounter lawyers who have not prepared themselves
or their clients for the mediation process, and who may have failed to
address the subject of settlement with the client at all. Repeatedly certain
lawyers, but fortunately not all lawyers, bring their clients to a mediation
conference without ever having discussed the mediation process, the
client’s expectations, interests or needs, the solution the client hopes to
achieve, or a strategy for getting to that solution.
The lawyer may presume she will speak for the client and may have
failed to advise the client that the mediator will likely expect to address the
client directly. Every client has a story,11 and a mediator usually will want
to hear that story directly from the client. The client’s own words will add
texture to the legal dispute and permit the mediator to gain insight into
possible solutions that will benefit the client. An unprepared client may
feel exposed and vulnerable when questioned by the mediator and may

8. See Rubinson, supra note 7, at 866-73 (providing a “toolkit” for raising the issue of
mediation with the client and promoting it as a dispute resolution alternative).
9. See ADMINISTRATIVE OFFICE OF U.S. COURTS, 2007 ANNUAL REPORT OF THE DIRECTOR:
JUDICIAL BUSINESS OF THE UNITED STATES COURTS 13 (2008) (showing that 257,507 civil cases
were filed in federal district courts in 2007). Only 3,387 had full blown bench or jury trials, or 1.3
percent. Id. at 390. The rate rises to 2.0 percent if evidentiary hearings on motions, including
preliminary injunctions, are counted as trials. Id.
10. Sternlight, supra note 7, at 333.
11. See Nolan-Haley, supra note 4, at 1375 (“Client storytelling is an integral part of the
mediation process. It captures the human element which is so often missing when lawyers do
most of the talking and translate client stories into legal contexts.”)
2008] REPRESENTING CLIENTS IN MEDIATION 881

distrust the mediator and the process as a result. A well-prepared client will
understand the process and view the mediator’s questions as a natural part
of the process of building trust and developing creative solutions.
In certain situations the lawyer may explain the mediation process to
the client but advise the client to remain silent and let the lawyer do the
talking. If the mediator expects to hear from the client, the lawyer should
be prepared to explain the decision to speak for the client and the reason for
the decision. Usually, that decision is misplaced. If the lawyer wishes to
speak for the client because the client is unreasonable, the mediator could
assist the lawyer in conducting a reality check to test and hopefully
overcome the client’s unreasonableness. On the other hand, if the lawyer
has advised the client to remain silent simply because the lawyer has not
prepared the client, that decision will do a great disservice to the client and
may leave the client feeling left out of the process even though he or she is
physically present.
A lawyer may presume that the mediator’s role in managing the
process and guiding the parties’ search for an acceptable solution absolves
the lawyer from preparing himself or herself, or the client. The mediator
will do the heavy lifting, and the lawyer and client will reap the benefit.
This attitude likely stems not necessarily from laziness on the lawyer’s part,
but rather from fear that raising the topic of settlement with the client
communicates weakness. The lawyer may feel safer in allowing the client
to think that exploring settlement is the mediator’s idea, especially if the
mediator is a judge, and the lawyer and client are obliged to follow.
Mediation has little chance of bearing fruit without an investment by
the mediator, the lawyer, and the client. The mediator controls the process
and hopefully brings an ability to manage that process effectively. The
client controls the outcome, and the lawyer must work with the client to
reach a satisfactory outcome. The lawyers and parties bring to the process
superior knowledge of the dispute and its potential solutions. They should
use the mediator’s process skills to aid them in overcoming obstacles and
identifying potentially satisfactory solutions.12
At best, attorney-client failure to communicate about settlement in
advance of mediation slows the process. The time allotted to the session by
the mediator may prove insufficient if it must incorporate pre-negotiation
discussion between attorney and client. Additionally, creative solutions do
not simply “materialize”; they become apparent only after thoughtful
consideration of the parties’ needs and interests. The mediator can help the

12. See Abramson, supra note 1, at 121-33 (detailing ways to enlist the mediator’s
assistance, depending on the mediator’s style and the nature of the impasse between the parties).
882 NORTH DAKOTA LAW REVIEW [VOL . 84:877

parties identify which solutions will work, but most often the clients pro-
vide the best and most creative ideas for solutions.13 Advance discussion of
the client’s needs and interests, as well as potential solutions addressing
those needs and interests, significantly improves the potential of a
successful mediation conference. The cardinal rule, therefore, is that
lawyers must speak with their clients extensively about all issues touching
on settlement before attending mediation.

3. The Client’s Emotional State

At the first meeting with the client and at each significant contact
thereafter, counsel should take the client’s pulse about settlement. The
client may initially approach counsel with the expectation of a quick and
easy settlement, and when this does not come to pass, the client’s disap-
pointment may manifest itself in a decision to “punish” the other party by
going to trial. Conversely, the client may initially want public vindication
through a trial, but may become worn down over the course of the litigation
process and simply prefer to end the ordeal. The extremes of these client
positions rarely result in outcomes satisfactory to the client, whether at trial
or in settlement. Counsel may temper these extremes by monitoring the
client’s emotional state periodically and by reassuring the client that the
course of the litigation and any settlement discussions are normal, with any
delay being necessary to serve the client’s best interests.
Some attorneys regularly check the client’s emotional state and con-
duct reality checks on the client’s expectations, both in outcome and time
frame.14 Other attorneys, unfortunately, focus only on the issues in the
litigation and leave reality checking to the mediator or the fact finder. The
latter attorneys’ clients are often disappointed by the settlement and/or
litigation process and ultimately harbor resentment toward their own
attorneys.
If counsel detects strong emotions or unrealistic expectations in the
client, counsel’s best course is to address them early and often. A client’s
resistance to settlement should be dissected: Does the resistance stem from
a firm, well-founded conviction in the strength of the client’s legal position,
or a need for adjudication to inform the client’s future policy? On the other
hand, is the client’s resistance a product of something the client read about

13. Sternlight, supra note 7, at 344.

14. See Joan L. O’Sullivan et al., Ethical Decsionmaking and Ethics Instruction in Clinical
Law Practice, 3 CLINICAL L. REV. 109, 133 (1996) (stating that understanding the client’s
perspective, which encompasses emotional state, has been suggested as “an ethically required
practice skill” in the context of litigation). Understanding the client’s perspective is also “an
ethically required practice skill” in mediation. Nolan-Haley, supra note 4, at 1383.
2008] REPRESENTING CLIENTS IN MEDIATION 883

another case or the opinion of a misguided family member or friend with no

stake in the litigation? Even worse, does the client’s opposition to settle-
ment stem from counsel’s own puffing about the case or desire to try the
case for selfish reasons? Counsel’s open-eyed exploration of client-driven
barriers to negotiation will assist counsel in managing any unreasonable
resistance or expectations by the client.15

4. Case Information vs. Settlement Information

Before undertaking discovery and engaging the other party in settle-
ment discussions, counsel should assess the known information about the
case, the information that counsel knows is still unknown to the other party,
and the possibility of unanticipated information—the information that
counsel doesn’t know is unknown to the other party. Counsel can then
engage in a cost-benefit analysis of what information should be gathered
before opening settlement discussions. This assessment should include an
appraisal of opposing counsel: Will opposing counsel engage in a cooper-
ative, informal exchange of information, or is formal discovery, though
slower and more costly, necessary for gathering sufficient, reliable
information?
Counsel should differentiate case information that critically affects
settlement value from information needed for trial. The two spheres of
information will likely overlap significantly, but the congruence is far from
perfect. Certain information may be necessary for presentation at trial, but
it may not be critical for settlement purposes. Conversely, a number of the
issues listed in this article may affect settlement but not trial. Counsel
should then embark on a dual track to develop the information needed for
settlement as well as for trial, with a suggested emphasis on developing
settlement information first. Once counsel has gathered settlement informa-
tion and key trial information, the case may settle without need for full trial
discovery. In fact, many lawsuits settle without any formal discovery at all.

5. Evaluating Strengths and Weaknesses

Mediators, both judicial and private, often ask counsel, either in
advance or during the course of a mediation session, to assess the strengths
and weaknesses of the facts and the legal issues. In response, counsel will
frequently reel off a list of strengths of his or her client’s case, while giving
only token attention to weaknesses. Conversely, when asked to perform an

15. See Sternlight, supra note 7, at 297-313 (identifying various economic and psychological
barriers to negotiation).
884 NORTH DAKOTA LAW REVIEW [VOL . 84:877

assessment of the opposing party’s case, counsel will recount numerous

weaknesses and give little or no credence to the other party’s strengths.
This egocentric approach ultimately undermines the settlement process and
interferes with the parties’ ability to achieve resolution. Hearing these lop-
sided evaluations encourages the clients to remain invested in unbalanced
and unrealistic positions.
Counsel should not only engage in a two-sided assessment of strengths
and weaknesses, but also share that assessment with the client before they
form the settlement strategy and position they will bring to the settlement
negotiations. The assessment should address the merits of the case, as well
as non-merits factors that may affect case value, such as the fact finder’s
likely impression of the respective parties or key witnesses, hometown
advantage or disadvantage, and complexity of the evidence. A fully versed
client is more likely to approach negotiations with a realistic frame of mind
than is a client impaired by blind spots.

6. Parties’ Needs and Interests

A facilitative mediation process will focus as much on the interests and
needs of the parties as it does on the merits of the case. Lawyers often
hyper-focus on the factual and legal issues, to the exclusion of their clients’
needs and interests. Focusing on the issues in the lawsuit also limits the
field of remedies the lawyer considers, usually to money damages.16 A
well-prepared lawyer will recognize both the interests the client hopes to
serve through litigation and the interests served through settlement. The
litigation interests and settlement interests may not coincide; in fact, they
may be quite different. The client may not have even considered, much less
prioritized, these interests.
Client interests or needs that fall outside the scope of the litigation
issues may include financial pressure, the emotional toll of the ongoing
dispute, embarrassment or business loss if certain evidence is revealed pub-
licly, or guilt over contributory fault, among many other possible considera-
tions. Counsel and client should engage in a pre-mediation discussion of
the client’s interests and an analysis of how those interests may affect the

16. See Tamara Relis, “It’s Not About the Money!”: A Theory on Misconceptions of
Plaintiff’s Litigation Aims, 68 U. PITT. L. REV. 701, passim (2007) (presenting the results of an
empirical study about plaintiff motivations). One finding in Relis’s study was that every medical
malpractice plaintiff in the study reported receiving either no explanation or an unsatisfactory
explanation for the bad outcome. Id. at 725. This squares with this author’s own experience. A
number of medical malpractice plaintiffs have expressed during mediation conferences that their
physicians stopped talking to them as soon as things went wrong, and the plaintiffs were left
feeling abandoned and disrespected. They all said they would not have sued if the physician had
just expressed regret and explained what happened.
2008] REPRESENTING CLIENTS IN MEDIATION 885

settlement negotiations. Finally, the pre-mediation discussion should in-

clude an assessment of the effect of disclosing those interests or needs to
the other party: Is disclosure more likely to aid the settlement process or
harm the client? Only after both lawyer and client recognize the client’s
needs and interests, and factor those interests into their settlement strategy,
can they achieve a resolution that serves those needs and interests.
In addition to considering his or her own client’s interests, counsel
should prepare himself or herself and the client to take into account the
interests and needs of the other party as they frame their settlement strategy.
Obviously, the parties will agree to settlement terms only if both sides find
the terms more beneficial than continued litigation. A lawyer can enhance
his or her client’s prospects of settlement by considering what terms may be
attractive to the other party and why. Certain interests of the two parties
may be contradictory, but others may be compatible or at least neutral.
Counsel should consider the extent to which his or her client can meet the
other party’s needs and interests without unduly conflicting with his or her
own client’s interests. For instance, in an employment discrimination case,
the employer can provide a letter of reference, remove an arguably unfair
personnel evaluation from the employee’s file, or at least soften the lan-
guage, with little or no pain to the employer, yet provide substantial value
to the employee.

7. Litigation Remedies vs. Settlement Remedies

Mediation provides an opportunity for the parties to craft their own
remedies. The law provides only a limited range of remedies, but media-
tion allows them to creatively shape their resolution to best meet their
needs.17 Counsel often miss this opportunity by failing to explore prior to
mediation what remedies may best serve the client’s interests, and whether
those remedies are available only through settlement. All too often,
counsel’s focus is limited to a monetary award, when a more expansive
approach to settlement remedies could bring more satisfaction to the client
than a good litigation result. Examples of creative settlement remedies in
cases that this author has mediated, in addition to the personnel matter

17. Carrie Menkel-Meadow refers to the limited range of remedies available by law as judges
having “limited remedial imaginations.” Menkel-Meadow, Winning, supra note 1, at 908. This
observation arises from another of her articles, Carrie J. Menkel-Meadow, The Trouble with the
Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 7 (1996).
Menkel-Meadow also observes that mediation “can craft future relationships and does not have to
find facts, assign fault and blame, or issue judgments or awards about the past.” Carrie J. Menkel-
Meadow, Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice
in Mediation, 5 CARDOZO J. CONFLICT RESOL. 97, 101 (2004).
886 NORTH DAKOTA LAW REVIEW [VOL . 84:877

mentioned above, include charitable contributions made by the defendant in

the plaintiff’s name, rewriting a policy the plaintiff finds offensive,
redirecting payment to a third party, sale of equipment in lieu of cash pay-
ment, statements of apology or regret,18 and a joint press release, to name
only a few.

8A. Authority to Settle: Business Entities

Productive settlement discussions require the right participants.
Counsel who represents a corporation, other business entity, or insured
party should explore with the client or its insurer early in the life of the
case, and well before settlement discussions begin, the client’s decision-
making hierarchy for settlement of such a dispute. Frequently, more than
one person is involved in evaluating the case and deciding on the party’s
settlement position. To provide effective advice on settlement evaluation,
and to understand the client’s views on settlement, counsel should confer
directly with all critical decision makers. Ideally, counsel will also secure
the attendance of all the decision makers at the mediation conference. More
often the client, after making a settlement evaluation, will delegate a
particular level of settlement authority to one employee, who will attend the
mediation on the client’s behalf with directions to negotiate within that
authority limit. The representative’s lack of discretion to exceed the
authority limit becomes an issue when the parties reach impasse in their
negotiations, and the representative must contact a superior, who is
hopefully available by telephone, to inquire about further authority. The
superior, not having participated in the give and take of the negotiations,
feels no investment in the process and frequently finds it easy to attribute
the impasse to unreasonableness by the other party and refuses to enhance
the offer. This refusal often results not only in failure to reach settlement,
but also to resentment by the other parties of an unengaged, distant person
making the decision to stop the negotiations. This perceived lack of respect
complicates the negotiations going forward and makes it difficult for
counsel to re-engage the other party in settlement discussions.
The authority quandary has led most judicial mediators to impose a
requirement that representatives attending a mediation conference hold
sufficient authority.19 The language used for this requirement varies from

18. See Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165,
passim (1997) (assessing the power of apology in transforming relationships, but recognizing that
crafting apologies in litigation is a delicate process).
19. See FED. R. CIV. P. 16(c) (authorizing the court to require the attendance of a party’s
representative at a pretrial conference, including one for the purpose of discussing settlement).
2008] REPRESENTING CLIENTS IN MEDIATION 887

one judge to another. For instance, some judges require a corporate party or
insurer to send a representative holding authority equal to the plaintiff’s last
settlement demand.20 Other judges, myself included, believe language this
strong permits an unreasonable plaintiff to manipulate the process by
forcing the defendant to bring a higher level representative than necessary.
Thus, this author’s order and those of similar-minded judges require a
representative with “full” or “final” settlement authority.21 Yet other judges
use arguably more lax language, for instance, requiring “a representative
authorized to discuss and make recommendations relating to settlement.” 22
Despite the efforts of settlement judges to forestall the authority issue,
issues involving inadequate authority nevertheless surface with some
regularity at mediation conferences.
Counsel should familiarize himself or herself with the judicial or
private mediator’s expectations concerning authority and then take steps to
ensure the client’s settlement representative possesses the required level of
authority. If counsel encounters difficulty in securing the attendance of
properly authorized representatives, counsel should promptly inform the
mediator of the situation and seek further direction or request a waiver of
the authority requirement if circumstances warrant this step. In appropriate
circumstances, the mediator may approve a less stringent arrangement, such
as availability of the fully authorized representative by telephone,
particularly if the other party does not object. Remaining silent and hoping
that the mediator and the other party will not notice the authority
deficiency, or that they will overlook it, is a strategy designed only to invite
impasse in the negotiations and, in a judicial mediation setting, a potential
award of sanctions against the client, the attorney, or both.23
A representative with final authority, even authority equal to the
plaintiff’s last demand, is never required to actually offer the full extent of
that authority. Mediators’ requirements for authority are intended only to
avoid authority gaps that would bring an end to the negotiations before the
parties have reached true impasse. The authority requirements are not

20. Form Order used by U.S. Magistrate Judge David Piester, District of Nebraska (on file
with author).
21. The order used by this author requires “a representative in person with full and complete
authority.” (On file with author).
22. Form Order used by U.S. Magistrate Judge Celeste Bremer, Southern District of Iowa
(on file with author).
23. See FED. R. CIV. P. 16(f) (authorizing imposition of fees and costs “[i]n lieu of or in
addition to any other sanction” against the attorney, the client, or both); see also Universal Co-
ops., Inc. v. Tribal Co-op. Mktg. Dev. Fed’n of India, Ltd., 45 F.3d 1194, 1195-97 (8th Cir. 1995)
(affirming sanctions against a party for failing to send a representative with “full settlement
discretion,” but reversing the award of sanctions against that party’s attorney, because the attorney
had “used his best efforts to secure the compliance of his client”).
888 NORTH DAKOTA LAW REVIEW [VOL . 84:877

intended to force a party to offer more than that party is willing to pay in
settlement.

8B. Authority to Settle: Governmental Parties

Attorneys representing governmental entities also face logistical chal-
lenges in securing the attendance of appropriate representatives. To comply
with open meeting laws,24 a governmental entity must approve a proposed
settlement in a properly noticed, public meeting.25 Thus, the governmental
party cannot make a final settlement decision at the mediation session, even
if the entire governing board attends. This limitation does not excuse
counsel or the governmental party from taking preparatory steps to
minimize the effect of the lack of final decision-making authority during the
mediation conference.
Generally, the board, or certain of its members, should meet with
counsel in an executive session prior to the mediation conference to discuss
settlement evaluation and negotiation strategy.26 One or more members of
the board should then attend the mediation conference and negotiate based
on the agreed parameters. If the case does not settle within the agreed
parameters, the representatives in attendance may need to exercise discre-
tion to propose a settlement beyond those parameters. When the represen-
tatives do reach a conditional settlement with the other party beyond the
agreed parameters, counsel and the attending representatives should be
prepared to assure the mediator and the other party that the representatives
carry sufficient credibility with the entire board that their recommendation
for acceptance of settlement terms is likely to garner full board approval at
a subsequent open meeting.

9. Insurance Coverage
Counsel for both parties should determine in advance of mediation the
existence of any applicable insurance coverage. In federal court, a defen-
dant must reveal such coverage before discovery commences.27 Before

24. See, e.g., N.D. CONST. Art. XI § 5 (providing that all meetings of public or governmental
entitites, or publicly funded organizations, must be open to the public); N.D. CENT. CODE §§ 44-
04-19 to -21.3 (2007) (establishing the requirement for public access to meetings, exceptions to
the open meeting requirement, notice requirements, administrative review procedures, and
remedies).
25. N.D. CENT. CODE § 44-04-20 (notice required); § 44-04-21 (open voting required).
26. Id. § 44-04-19.1 (creating an exemption from open meetings law for attorney
consultation and negotiation preparation).
27. See FED. R. CIV. P. 26(a)(1)(A)(iv) (requiring initial disclosure of “any insurance
agreement under which an insurance business may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment”).
2008] REPRESENTING CLIENTS IN MEDIATION 889

mediation, counsel for each party should explore the nature and extent of
that coverage, and whether there is any dispute over coverage. If the
insurer is defending the insured under a reservation of rights to deny
coverage, counsel should discuss with one another whether that dispute
must be resolved prior to addressing settlement of the underlying claim.
Conversely, counsel should address whether the underlying claim can be
settled subject to later resolution of the coverage issue. Whether separate
coverage litigation is pending, counsel should also consider whether the
coverage dispute and the underlying claim may be resolved at the same time
in a global settlement. This approach will require attendance at mediation
and participation by the insurer’s settlement representative and its coverage
counsel. If the named defendant has secured separate counsel for the
coverage dispute and a possible bad faith claim, that attorney should also
attend the mediation conference. In exploring these complexities, counsel
should keep the mediator and their clients informed. The mediator can
assist counsel with planning the sequence and scope of the negotiations.
For instance, the negotiations may proceed in stages rather than with all
issues at the same time. An informed mediator can better prepare to
manage the negotiations, and the parties will approach the negotiations with
a clearer understanding of the nature and pace of the process.

10. Subrogation Interests

Personal injury plaintiffs frequently have received workers compen-
sation payments or health insurance benefits due to their injuries, and the
payor may hold a subrogated interest in any settlement or judgment. The
plaintiff’s attorney should verify the existence and amount of any such
interests and share that information with counsel for the other party and the
mediator. Informed participants are better prepared to meet the added
complexity presented by multiple interests. Further, counsel should deter-
mine whether the interest can be compromised, and if so, whether the
subrogee is willing to reach an agreement in advance of mediation to accept
a certain dollar amount or a set percentage of any settlement, or alternative-
ly, whether the subrogee wishes to participate in the mediation conference
in person or by telephone. If the attorneys fail to address such interests in
their mediation preparation, the subrogation interest may become an
obstacle to the parties’ effort to reach a settlement.28 The mediator should

28. In the author’s experience, such obstacles can arise in at least two ways. If a defendant is
unaware until late in the negotiations that the plaintiff expects the defendant to pay any
subrogation interest in addition to the amount offered in settlement, the defendant will view that
development as a sudden increase in the plaintiff’s demand, which is likely to end the discussions.
Conversely, in one case, the defendant assumed the plaintiff would receive ongoing workers
890 NORTH DAKOTA LAW REVIEW [VOL . 84:877

be kept informed of the status of any subrogation interest, a subrogee’s

anticipated participation in the mediation conference, and any arrangement
to settle the subrogation interest. Again, the mediator can assist counsel in
organizing the session to wrap the resolution of the subrogation interest into
the negotiations.

11. Shadow Parties

Generally a mediator will direct only that the named parties and any
applicable insurers attend the mediation conference, but additional persons
may be critical to reaching a settlement agreement. A spouse, significant
other, parent, child, other relative, or close friend of a party may exert
strong influence on the party’s expectations and settlement position. The
party may hesitate or even refuse to agree to settlement terms before con-
sulting with that person. This situation usually presents itself with individ-
ual parties, but a business entity may want to consult with a banker or
accountant before agreeing to any settlement. If such a person, often called
a “shadow party,” is influencing the party, or the party relies heavily on the
other person for advice, counsel is well served to explore with the client
whether it would help or hurt settlement prospects to bring the person to the
mediation conference. Although the shadow party may have strong views
about the case and its settlement value, that person may not be living with
the emotional or financial burdens of the litigation and may stake out a rigid
and unreasonable stance on settlement. Direct participation in the negotia-
tions may soften or at least better inform that person’s views. Counsel and
the mediator will have an opportunity to observe the dynamics of the
relationship between the client and the influential person, to attempt to
correct erroneous impressions about the facts, the law, or the litigation
process, and to perform a reality check on both the client and the shadow
party. Counsel should, of course, inform the mediator in advance of the
client’s reliance on the other person and of counsel’s strategy for dealing
with that dynamic.

12. Financial Limitations on Settlement

A defendant facing a strong prospect of an adverse litigation outcome
may nevertheless make seemingly inadequate settlement offers. Such
offers may be a product of the defendant’s financial inability to pay a judg-
ment in the likely range of outcome. Unless the defendant informs the

compensation payments, but the plaintiff had already settled all workers compensation claims
without telling the defendant. When the defendant learned of this development accidentally, the
resulting mistrust of the plaintiff brought the negotiations to an end.
2008] REPRESENTING CLIENTS IN MEDIATION 891

plaintiff of this situation, the plaintiff will likely read the defendant’s offer
as unreasonableness and call off the negotiations. The parties will then
proceed with litigation, pouring more money into a needless exercise with
an ever-shrinking recovery potential. Counsel for the plaintiff may not
have access to information about the defendant’s financial condition
through discovery, but if the defendant’s attorney advises plaintiff’s counsel
of the financial concern early in the litigation, counsel for both parties can
redirect their efforts into determining what kind of settlement terms the
defendant can afford, rather than wasting time and money on litigation
preparation and evaluation of the merits.
A defendant pleading financial distress should be prepared to share
with the plaintiff verification of its financial condition. The plaintiff’s
attorney cannot provide informed settlement advice to his client without
such documentation. Counsel for both parties should discuss what informa-
tion the plaintiff will need to satisfy regarding the defendant’s financial
condition. The parties may enter into a confidentiality agreement limiting
the use of the information or even the persons who may review it, since the
information may have no other purpose in the case. The defendant’s
independent accountant or in-house financial officer may need to meet with
counsel or even participate in the mediation conference in person or by
telephone. Counsel for the defendant should, of course, inform the media-
tor prior to the mediation conference of the financial issue and be fully
prepared not only to make settlement proposals based on the defendant’s
ability to pay, but also to provide substantiation of that position.

13. Client Control

Counsel should candidly assess whether she has a client control
problem before entering into mediation. If so, counsel should consider how
to overcome the client’s unreasonableness and refusal to listen to counsel’s
advice. Perhaps the client has a family member or trusted friend who could
help the client redirect his perspective. The attorney may practice with a
more experienced lawyer or lawyer with a different personality who can
help with this challenge. In addition, counsel should consider disclosing the
concern to the mediator and enlisting the mediator’s aid in meeting the
problem.29 An ethical mediator will not usurp the attorney’s role and advise

29. See Sternlight, supra note 7, at 340-41 (stating that the mediator may relieve the attorney
from serving as a bearer of bad news to the client).
892 NORTH DAKOTA LAW REVIEW [VOL . 84:877

the client on settlement,30 but the mediator can support counsel’s advice by
performing a reality check with the client.

14. Knowing the Mediator

There are as many variations on the mediation process as there are
mediators. Counsel should attempt to learn as much as possible about the
mediator’s procedure, expectations, style, and personality. This informa-
tion will help in shaping the party’s negotiation strategy. It is helpful to
know whether the mediator uses mostly joint sessions with all the parties
together or prefers separate caucus meetings with each party. Counsel
should determine whether the mediator primarily addresses the attorneys or
expects active participation by the clients. Evaluative mediators who focus
principally on litigation issues will likely communicate mostly with coun-
sel. At the other end of the spectrum, facilitative mediators with a broad
focus will want to hear directly from the clients.31
Counsel should explain the anticipated process to the client and prepare
the client to participate to the extent the mediator will expect. If the client
is expected to speak openly and actively, counsel should reassure the client
that counsel will be there to advocate where appropriate, protect the client’s
interests, and advise the client as needed. An attorney with little or no
experience with client-centered negotiation should invite the client to
express in advance of mediation the client’s views about the litigation, the
emotional and financial burdens it has caused, the client’s interests and
settlement expectations, and the pressures on the client to settle or not
settle. This pre-mediation session may relieve counsel’s qualms about the

30. See MODEL STANDARDS OF CONDUCT FOR MEDIATORS § II(B) (2005) (adopted by the
American Arbitration Association, the American Bar Association and the Association for Conflict
Resolution) (“A mediator shall conduct a mediation in an impartial manner and avoid conduct that
gives the appearance of partiality.”); see also Lela P. Love, The Top Ten Reasons Why Mediators
Should Not Evaluate, 24 FLA. ST. U. L. REV. 937, passim (1997) (citing Ethical Codes Caution
Mediators—and Other Neutrals—Against Assuming Other Roles as one of the “Top Ten Reasons”
mediators should avoid being evaluative).
31. There is an extensive body of literature on mediator style, and the evaluative-facilitative
distinction in particular. See Leonard L. Riskin, Understanding Mediator Orientations, Strategies
and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7, passim (1996) (defining
the evaluative-facilitative mediator style). This distinction, first articulated by Leonard Riskin,
usually indicates whether a mediator will offer an evaluation of the issues, opinion of case value,
or a mediator number as a suggested resolution. Id. Riskin also identified a second dimension of
mediator style, that of broad or narrow. Id. A narrow mediator will focus on the legal and factual
issues presented by the claim, while a broad mediator will look beyond the legal dispute to the
parties’ extra-legal interests. Id. Riskin has since refined his model. Leonard L. Riskin,
Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE
DAME L. REV. 1, passim (2003).
2008] REPRESENTING CLIENTS IN MEDIATION 893

client speaking directly to the mediator and may lessen counsel’s tendency
to interrupt during the mediation conference to speak “for” the client.

15. Time Commitment

The mediator may not indicate his or her expectations for the length of
the mediation conference, or he or she may have no idea how long it will
take. Counsel should always inquire in this situation as to the mediator’s
expectation. When this communication does not take place, counsel or the
client representative may make travel arrangements based on their personal
schedules or their assumptions arising from experience with another
mediator. Then, in the midst of a mediation conference, if the attorney or
client announces he or she must leave soon to catch an airline flight, the
mediator and other party become frustrated. Instead of using the remaining
time to achieve settlement, the parties often devote the time to complaining
about or defending the travel schedule. In a different scenario, counsel
could expect an all-day session, and when the mediator announces that the
session will end soon, the parties may not have progressed as far as counsel
had expected.
Attorneys can avoid these situations by communicating with the
mediator in advance about the mediator’s expectation for the length of the
session. Not only should an attorney conform his or her own travel plans to
the mediator’s expectation, but he or she should also make sure the client’s
travel schedule complies as well. If counsel does not believe he or she, or
the client can meet the mediator’s expectations for commitment of time,
counsel should inform the mediator as well as counsel for the other party,
so they can discuss whether the limited time is sufficient or whether the
mediation session should be rescheduled.

16. Attorney’s Fees

If attorney’s fees are an element of the plaintiff’s potential recovery,
counsel for the plaintiff should anticipate that a discussion of the amount of
fees will arise during the negotiations. Counsel should bring to the media-
tion documentation of the fees and costs and be prepared to support any
amount sought in settlement for those items. The defendant, who is already
paying his or her own attorney, invariably will resist paying any significant
amount toward settlement of fees and costs. A plaintiff’s attorney may
respond by suggesting that the parties submit the attorney’s fee issue to the
court for decision after settling the plaintiff’s claim. The defendant will
generally refuse, preferring to resolve the entire matter at once, which
places pressure on the plaintiff’s attorney to decide whether to forego
894 NORTH DAKOTA LAW REVIEW [VOL . 84:877

settlement or to resolve the case satisfactorily for the client, but perhaps
unsatisfactorily for the attorney.
The natural resistance of the defendant to pay significant attorney’s
fees creates a significant source of conflict between the plaintiff’s attorney
and his or her client, particularly in cases where the plaintiff’s damages are
relatively low but the fees have become significant. The fees often become
“the tail that wags the dog.” Defendants in such cases may try to make a
split offer, offering the plaintiff a relatively generous sum and offering only
a small sum, or nothing, for attorney’s fees. The plaintiff’s attorney then
feels pressure from the client to reduce or waive fees in order to secure the
offer for the client’s damages. Or, the client may refuse a generous offer,
saying, “I need to take care of my lawyer.” This situation may be compli-
cated further when the plaintiff’s lawyer and client have a contingent fee
agreement. Lawyers in attorney-fee award cases should thoroughly review
with their clients in advance of the mediation the issue of attorney’s fees
and the potential for conflict.32 Better preparation will generally yield
better understanding and less conflict during the mediation.

17. Rationale for Settlement Proposal

A party may offer a proposal at mediation that seems to make little
sense to the other party, yet the offering party will offer no rationale to
support that proposal. Counsel will expect the mediator to communicate
the offer, but the mediator is hampered by lack of information about the
basis of the proposal. Sometimes a party simply will have no rationale for
its offer; the offer is just a trial balloon the party may float to see how the
other party reacts. In other situations, the proposal may be based on calcu-
lation of certain items the offering part is willing to consider in settlement,
while rejecting others, such as allowing for back pay but rejecting front pay.
The offer may also be based on the anticipated effect of certain evidence.
Many lawsuits have “skeletons,” or information that one party uncov-
ers about the other without the other’s knowledge. The more dramatic the
skeleton, the more likely it will affect the discovering party’s settlement
evaluation and the more likely the discovering party will not have revealed

32. This potential for conflict of interest is not limited just to fee-award cases, although it
may be more pronounced in those cases. Commentators have posited that every fee arrangement
entails some potential for conflict between lawyer and client, since “the lawyer’s financial self-
interest will be exactly congruent with his or her client’s goals in the representation. Only the
lawyer’s sense of professional obligation—his or her ‘purity of heart’—can assure that it is the
client’s goals that are being advanced.” Robert P. Burns, Some Ethical Issues Surrounding
Mediation, 70 FORDHAM L. REV. 691, 700-01 (2001); see also Sternlight, supra note 7, at 313-31
(identifying a number of economically and psychologically divergent interests of attorney and
client).
2008] REPRESENTING CLIENTS IN MEDIATION 895

its knowledge to the other party. Yet, in settlement discussions, the party
with the “juicy” information will often resist disclosing its knowledge to the
other party, choosing instead to keep the knowledge secret until its surprise
revelation at trial. This author has heard counsel say on a number of
occasions, “We don’t want you to tell them we know this but . . . .”
Counsel then divulges information regarding the video showing the
personal injury plaintiff playing basketball, of the sordid workplace affair in
which the other party engaged, or the like.
Any party who wishes to achieve settlement of his or her case must be
willing to reveal to the other party the rationale for its settlement evaluation.
Without the revelation, the settlement evaluation and offers of the party
holding the information may confound the other party and will not cause
the other party to rethink its own evaluation. Settlement negotiations may
falter as a result. The best practice is for the party to reveal the evidence or
calculation in an effort to improve the prospect of settlement. The party
holding the secret evidence may have overrated the dramatic effect of the
evidence at trial, and its effect on settlement may be no less dramatic than at
trial. A party who has based its settlement proposal on a calculation should
be prepared to share that calculation to provide some context for its offer.
Counsel should prepare to share this information with the mediator and
ultimately with the other party.

18. Written Mediation Statement

Many mediators, both judicial and in the private sector, require that
counsel submit a written statement several days prior to the mediation.33
The mediator may ask the attorneys to send a copy to other counsel, or he
or she may request confidential statements that are provided only to the
mediator.
Non-confidential statements should be written for consumption by
counsel for the other party, as well as the mediator. A non-confidential
statement will invariably have a persuasive tone, since counsel will want to
impress the other party with a strong position.
A confidential statement should be a different animal altogether.
Confidential statements should be written with the mediator in mind, since
the mediator is the only intended audience.34 The intended purpose of a
confidential statement is at least twofold: (1) it should educate the mediator

33. This author issues a standard order setting out requirements for a written mediation state-
ment. See discussion supra note 21 (establishing requirements for party representative settlement
authority).
34. Counsel is, of course, permitted to share the statement with his or her own client.
896 NORTH DAKOTA LAW REVIEW [VOL . 84:877

about the issues in the dispute, both legal and extra-legal, the parties’
settlement positions to date, and the potential for settlement; and (2) the
exercise of preparing the statement should cause counsel to review the
litigation risks, taking into account the relative strengths and weaknesses of
each party’s case, plus the transactional costs of continued litigation. In
writing the statement, the attorney should have considered the interests and
needs of each party and have analyzed potential settlement solutions.
Counsel also should address strategies to achieve the potential solutions.
More often than not, in this author’s experience, attorneys’ confidential
mediation statements fall short in several respects. First, the confidential
mediation statements are frequently indistinguishable from a summary
judgment brief, complete with case citations. They are one-sided argu-
ments intended to persuade the mediator, not inform the mediator of the
issues that will likely affect settlement, both legal and extra-legal, or assist
the mediator in planning how to manage the process to guide the parties
toward settlement. There is absolutely nothing confidential in them.
Counsel may have just as well served these statements on the other party’s
attorney. Further, many of the statements are devoid of any indication of
what the client is willing to do to resolve the case or what counsel believes
the other party may be willing to do. Instead, if the statement contains any
such information at all, it is limited to a proposal the client has already
offered or will offer at the outset of the mediation process. Rarely does
counsel include an assessment of where the negotiations may lead.
Whether the mediation statements are confidential or not, attorneys
frequently miss the submission deadline. When late, an attorney will
usually dash off a short letter the afternoon before the conference in a half-
hearted effort to meet the letter of the mediator’s requirement. The spirit is
nowhere in sight. While such an abbreviated statement will limit the
mediator’s ability to prepare for the mediation session, a more important
consequence is that it demonstrates that counsel has not devoted sufficient
attention to settlement evaluation and strategy and likely has not conferred
with the client to prepare themselves for the negotiations. This ultimately
short changes the client, not the mediator.
These deficiencies, both in the content of the statement and the timing
of its submission, are likely the result of counsel focusing primarily on
litigating, not on settling. The mediator’s requirement for a written state-
ment is not a make-work rule imposed just to waste lawyers’ time. A good
mediation statement shows the lawyer has thought about the barriers to
settlement and the possible resolution, has prepared the client, and is
approaching the process in good faith with a serious intention to negotiate
the case to settlement.
2008] REPRESENTING CLIENTS IN MEDIATION 897

19. Negotiation History

Counsel should consider how prior settlement demands or offers might
affect the mediation. The defendant may have responded to a very unrea-
sonable demand by the plaintiff with an extremely low offer, or a refusal to
offer anything at all. The plaintiff in turn may have viewed an unreason-
ably low, or “nuisance,” offer by the defendant as an insult, also deserving
no response. If mediation takes place against this backdrop, the parties will
first want to process their negative feelings about the prior negotiations
before they move forward in a positive vein. The lawyers should include in
their written mediation statements a full report of the prior negotiations. A
revisionist history will not suffice—a previous, unreasonable position by
that party will not go away. The other party will not have forgotten and is
likely to inform the mediator about it, complete with superlative adjectives.
An informed mediator will anticipate the parties’ tendency to dwell on past
communications and plan the process to guide the parties toward a forward-
looking view. Candor is the best policy, if the attorneys want the mediator
to help the parties move past their prior negotiation missteps.
Surprisingly often, the attorneys will have differing recollections of the
negotiation history and may need to spend some time at the mediation
session sorting out what has already happened. The mediator will try to
move them past their prior baggage and encourage them to make a fresh
start, but a sense of the negotiation history will help the mediator minimize
the “he said-she said” battle over prior proposals.
In some instances, attorneys will talk “off the record” with one another
prior to mediation, with one of them sending signals about what amount
“might” settle the case. In most instances these “non-offer” signals are sent
without the client’s authorization, and unless they are immediately greeted
with acceptance by the other party, they will come back at mediation to
haunt the attorney who sent them. Invariably, the attorney for the other
party will insist on viewing such a signal as an actual offer, to which his or
her client is prepared to respond with a counter-proposal at mediation. The
counter-party will expect the signaling party to move beyond the signaled
level. This creates not only a dispute about what was actually said or
intended in the conversation between the attorneys, but also a potential
source of conflict between the signaling attorney and his or her client. The
client may view the attorney’s comments as worse than unauthorized,
perhaps even a betrayal of the client’s trust. This may affect the client’s
willingness to participate in mediation candidly. Counsel should reveal to
the mediator in advance any “non-offer” signals he or she may have sent, so
898 NORTH DAKOTA LAW REVIEW [VOL . 84:877

that the mediator may assist the parties in moving past the communications,
rather than negotiating about where their negotiations are.

20. Special Settlement Terms

Rarely do lawyers’ mediation statements mention such issues as the
client’s insistence on confidentiality of settlement terms, the need for the
defendant to delay payment or pay any settlement amount in installments,
the plaintiff’s demand for confession of judgment to secure payment, or the
request for unusual release provisions. In fact, these issues often do not
surface until the parties are about to reach agreement on the “core” settle-
ment terms. Nothing will dampen a settlement’s potential faster than
demanding substantial liquidated damages for breach of the confidentiality
provision of a settlement agreement, belatedly asking for a long delay for
payment or an installment plan, announcing that confession of a large judg-
ment is necessary to secure payment of the settlement amount, or insisting
on a non-party’s signature on settlement documents that forego his or her
potential claims.
A lawyer who has not prepared fully or thoughtfully may not think of
these issues until the parties are concluding their negotiations, or he or she
may think that waiting until the end of the negotiations will force the other
party to agree to the additional terms to ensure a settlement that seems well
within reach. A well-prepared lawyer, on the other hand, understands that
raising these issues at the last moment may just as easily unravel the
progress the parties have already made in mediation. Counsel should
mention the need for these terms in the written mediation statement. The
mediator can assist the party in deciding when and how to raise the client’s
need for these terms in a manner that does not frustrate or anger the other
party. If a settlement term is important enough to insist upon, it is
important enough to mention in the mediation statement.

CONCLUSION
A lawyer who thoughtfully and diligently follows these twenty
guidelines will be ready to anticipate most of the issues that may arise
during mediation. In addition, the lawyer’s client should feel comfortable
with the mediation process, be ready and willing to participate, and derive
satisfaction in the process, whether or not settlement is achieved. Last but
not least, the lawyer’s and client’s preparation will better prepare the
mediator to assist the parties in developing appropriate solutions to the
dispute. A question-format summary version of the guidelines is appended
to this article for lawyers to use as they prepare for mediation.
2008] REPRESENTING CLIENTS IN MEDIATION 899

APPENDIX
REPRESENTING CLIENTS IN MEDIATION:
A LAWYER’S PREPARATION GUIDE

1. Are you ready and willing to serve as a problem solver and not as an
adversary when you advocate for your client during mediation?
2. What discussions have you had with your client about settlement? Have
you asked about your client’s motivations for litigating, your client’s
impressions of the legal system, and your client’s expectations? Have you
explained the mediation process to your client?
3. What is your client’s emotional state? Have you regularly monitored your
client’s emotions over time? Have you tried to promote a healthy client
attitude toward settlement?
4. What facts or legal issues will most affect settlement value? Have you
developed these facts and researched these issues? What information may
be important to settlement but not relevant to the legal dispute? How will
you gather this information?
5. Have you evaluated the strengths of your client’s case? Have you
realistically assessed the weaknesses? What are the strengths and
weaknesses of the other party’s case? Have you adequately considered the
strengths and weaknesses in your settlement evaluation? Does this
assessment include litigation cost as well as risk of outcome?
6. Have you discussed with your client his/her needs and interests which
might affect the client’s desire for settlement or for trial? Have you
anticipated the other party’s needs and interests? To what extent are your
client’s needs and interests and those of the other party compatible, or at
least not incompatible?
7. What remedies are available through litigation? What remedies would
address the needs and interests of the parties, but are not available through
litigation?
8. A. If your client is a business entity or has insurance coverage, who makes
the final settlement decisions for your client? Have you talked to that
person about settlement? Who will attend the mediation on behalf of the
client? Does that person have sufficient authority to make the final
decision at mediation? If not, have you informed the mediator?
B. If your client is a governmental entity, has the entire board met with
you in an executive session to discuss settlement evaluation and
negotiation strategy? Will the representative(s) who attend the mediation
have reasonable authority parameters? If the case can be settled only
900 NORTH DAKOTA LAW REVIEW [VOL . 84:877

beyond those parameters, will the attending representative(s) have

sufficient credibility with the other board members to make a strong
recommendation for settlement? Do you know when the full board can
meet to approve any settlement?
9. Is there insurance coverage in this case? What are the limits? Is there a
dispute over coverage? If so, should the coverage dispute be negotiated
before, during, or after negotiation of the underlying dispute? If global
negotiations are best, will coverage counsel attend the mediation? Have
you informed the mediator of the coverage dispute and the identity of
coverage counsel?
10. Are there subrogation interests or outstanding liens? Have you verified the
amounts? Have you informed counsel for the other party of these liens
and the amounts? Are the liens negotiable? If so, can you resolve them in
advance of mediation, contingent upon settlement of the case? If not,
will/should a representative of the lien holder attend the mediation in
person or by telephone? Have you informed the mediator of these
interests and names of lien holder representatives?
11. Is there a person who may have a strong influence on your client’s
settlement decision? Will that person help or hinder settlement of the
case? Should that person attend mediation with your client? Have you
informed the mediator of this person’s influence?
12. Does the defendant have the financial ability to pay a judgment or
settlement in the likely range? If not, what financial information will
substantiate the defendant’s claim of inability to pay? Can you bring that
information to mediation? Will you need to bring an accountant or other
financial person to explain it? What payment terms might the defendant
need? Have you mentioned the financial concerns to the other attorney(s)
and the mediator?
13. Do you have concerns about your client’s unreasonable expectations and
your ability to manage them? Have you contributed to the client’s frame
of mind? Have you tried to conduct a reality check on the client? Have
you or will you request the mediator’s assistance in persuading your client
to become more reasonable?
14. How well do you know your mediator? Does the mediator use mostly joint
sessions or private caucus meetings? Is the mediator’s style facilitative or
evaluative, or does it change depending on the circumstances? Which
mediation style would work better in this case? Will the mediator
primarily address counsel or the clients? Are you and your client ready
for this?
15. How much time has the mediator set aside for the session? How can you
best use the time? If you or your client’s travel arrangements may conflict
2008] REPRESENTING CLIENTS IN MEDIATION 901

with the schedule, have you informed the mediator and the other
attorney(s)?
16. Is an award of attorney’s fees an issue in the case? If so, have you and
your client discussed the potential for a conflict of interest between you?
Do you know the current amount of the fees and costs? Are you prepared
to show verification of the amount without infringing on work product or
privilege?
17. Is there a rationale for the settlement proposal you will make at mediation?
Are you prepared to share that rationale with the mediator and the other
party? Are there calculations or documents you can bring to show the
rationale? Do you have evidence adverse to and unknown by the other
party that significantly affects settlement value in your client’s favor?
Have you weighed the risks and benefits of revealing the evidence to the
other party? Have you disclosed the evidence to the mediator?
18. Are you expected to prepare a written mediation statement? When is it
due? Does your statement address all of the mediator’s requirements? Is
it balanced and candid, or is it argumentative? Will the statement assist
the mediator in guiding the parties toward a settlement?
19. Have there been prior negotiations in the case? What was the last
settlement proposal of each party? Have you sent any “non-offer” signals
to the other party’s lawyer? Have you revealed the full negotiation history
to the mediator, including any “non-offer” signals made to the other
party’s lawyer?
20. Are there special terms your client will want in the final settlement
documents? Is confidentiality of settlement terms an issue? Are payment
terms an issue? Will you insist upon certain language in the release(s)?
What other special issues does your client have? Have you revealed these
special issues to the mediator?