An old time tactic with a new twist –

Richard L. Hurford

An Old Time Tactic with a New Twist-
Should Mock Mediations be Considered?

A litigation lifetime ago, when jury trials and bench trials were at least ten times more likely to occur than they are today (less than 1% of civil lawsuits are finally resolved by trial in the current litigation environment), experienced litigators would routinely rely on some form of mock jury trials. The objectives of a mock jury trial included: test running presentations that maximized the strengths and minimized the weaknesses of the case; educating clients on their potential exposure; psychologically preparing clients for the vagaries of the trial process; tailoring the testimony of clients to achieve the most effective impact upon the ultimate jury; evaluating optimal settlement strategies; and, orchestrating the trial presentation to achieve the client’s objectives. The form and expense of the mock jury trial would clearly be tailored to the potential exposure. In high exposure cases the mock jury trial might justify the services of a consultant who would solicit and screen mock jurors who mirror the demographics and attitudes of the jurors ultimately selected, the services of a jury consultant might be required to analyze the deliberations of the jury and suggest the optimal juror profile and most persuasive arguments, numerous mock presentation might be considered, and decisions would be made to determine how much would be expended to ensure the adequate presentation by counsel who played the role of plaintiff counsel and defense counsel.

Mock Jury Trial Option

In today’s environment the court ordered mediation, or the voluntary mediation agreed to by counsel, has become the trial of years gone by. Today the mediation process resolves far more litigation than a bench or a jury trial and is often the final and most effective setting to maximize the goals and interests of the client. Accepting the current reality, is it time to consider a twist on the old tool by orchestrating a realistic mock mediation that would achieve virtually all of the objectives of the mock jury trial at a far lesser cost and in a lesser time?

Mock Mediation Components

What might a mock mediation consist of:

• The retention of a trained mediator who would replicate the conduct and strategies of the mediator retained by the parties;
• Prepare the client for the conduct of the mediator and the opposing party (both positive and negative) that can be anticipated at the ultimate mediation;
• The mock mediator, presumably having ample trial experience, would identify through open ended questioning the potential weaknesses in the case and assist in reconfirming the strengths of the case;
• The mock mediator could generally critique the presentation and offer suggestions on how best to maximize the effectiveness of the presentation at the ultimate mediation;
• The mock mediator can be a valuable resource to discuss a negotiation strategy including the value of first offers and demands and the anticipated reactions and potential counter offers and demands;
• The mock mediator, working with counsel, would assist in identifying the psychological impediments to the resolution of the dispute and suggest strategies that might be utilized during the mediation to minimize the impact of those impediments.

Objectives/Purposes of Mock Mediation

In recent articles my PREMi colleague, Laura Athens, and I set forth at some length the multi-faceted psychological characteristics and roadblocks to a resolution that all litigants bring to the mediation session. See Laura A. Athens, “The Top Ten Cognitive Biases and Distortions in Mediation,” Oakland County Legal News (January 2021); Richard L. Hurford, “Are They Crazy No Just Human,” Oakland County Legal News (February, 2021). Recognizing and dealing with these impediments in advance of the actual mediation can be a very powerful tool in maximizing the ultimate goal of any mediation a realistic resolution that best serves the interests of the client. The unknown only exacerbates many of these psychological characteristics and a mock mediation can be of invaluable assistance in preparing your client to deal with these characteristics in a far more thoughtful and strategic manner.

The mock mediation will clearly prepare clients for the possibility of an opening joint session with all the parties present when the client may be asked to speak. While attorneys are accustomed to talking in front of groups, for many people it can be intimidating and for many a life-long fear. Thus, the clients should be prepared to answer or decline when the mediator asks for comment. A mock mediator will inquire if the client would like to communicate with the other side and then, with the critical input of counsel, offer suggestions about what might be effective. The mock mediator can be a valuable resource to assist your client in effectively preparing to speak during joint sessions.

It is equally important for clients to understand, which the mock mediator will independently underscore, the objective of the mediation is not to convince the ultimate mediator the claim or defense has merit. Rather, the objective is to convince the other side your client’s story is plausible and persuasive and will appeal to neutral fact finders even if the other side does not agree with you.

During the mediation clients often need to vent, but not at the cost of inadvertently undermining negotiation leverage. Venting during mediations are psychologically important but must also be geared to achieve the ultimate strategic purpose achieving the client’s objectives. A mock mediation will educate the client on the most important points to make and how their words and behavior can damage their case strategically even though confidentiality and inadmissibility rules will prevent their use later.

While clients should be encouraged to express themselves constructively, the mock mediator will also explain the ultimate mediator and the other party may not be interested in hearing significant details about the facts or excessive repetition of the circumstances underlying the dispute. Indeed, lengthy and repeated arguing about the disputed facts and motives, will likely be counter-productive. See Laura A. Athens, “The Blame-Shame Game in Mediation,” Oakland County Legal News (November 2021); Richard L. Hurford, “Are They Crazy No Just Human,” Oakland County Legal News (February, 2021). Instead, at some point the ultimate mediator and the other party will want to move beyond the disputed factual and legal merits in order to focus more on problem solving and the terms of a resolution.

Clients likely will expect their attorneys to be aggressive, zealous, and adversarial. However, for purposes of mediation, a different approach is more effective. Consider the mock mediator as a potential tool to educate the client that the attorney’s role during the mediation is to be an open-minded problem solver. The mock mediator will underscore that the attorney’s role as problem solver does not mean the lawyer has lost confidence, is selling the client out, or no longer believes in the client’s position. Indeed the mock mediator will underscore that if a resolution is not reached, the attorney will resume an aggressive, zealous, and adversarial role. For purposes of the actual mediation, clients should not be surprised to see a different side of their lawyer. Preparing clients for that distinction also prepares clients to understand the process and brings greater flexibility to settlement negotiations.

The mock mediator can also be of assistance in developing a negotiation strategy and how best to react to “unrealistic” initial demands or offers, the “bullying” negotiator, and other anticipated negotiation dynamics. Rather than coming up with a predetermined, fixed settlement amount before the mediation even begins, the mock mediator might suggest the consideration of a more strategic and flexible approach with regard to economic and non-economic settlement terms and the potential steps to achieve those desired terms.

Very sophisticated business clients who participate in hundreds of mediations often relate a common experience – walking away from failed mediations with the nagging sense the case would have settled if only the parties had simply been given an opportunity to directly communicate with one another. Too often, they have been left with the disillusionment crooned in Peggy Lee’s 1969 U.S. pop classic “Is That All There Is?” Instead of leaving with a deal, they fell victim to the typical break-out session type of mediation – the one where the parties are kept completely separated and the mediator simply shuffles back and forth trying to extract counteroffers in the hope of coming to a number somewhere in the middle. While many mediations succeed simply using shuttle diplomacy, many that fail may have benefited by strategically timed joint sessions with a well-prepared client. If the client is not sufficiently prepared for such a joint session, this potentially powerful negotiation tool will not be considered as so many attorneys may believe their clients are unprepared for such a session.

Conclusion “Luck Is What Happens When Preparation Meets Opportunity”

A mock mediation may be the twist on an old tool to prepare the client for the mediation and provide your client with the ability to effectively engage in a joint session that can be utilized at any time during the mediation process to avoid an impasse. Litigators might consider whether the mock mediation option is a cost effective tool in adding value to the case at the time of the actual mediation and:

Determine the “cost” of a mock mediation that is cost justified given the nature of the case and set a budget for the mediation accordingly;

• Identify a mediator who will conduct the mock mediation within the budgetary constraints established (certainly most mock mediations can be conducted in less than one day);
• Discuss in advance with the mock mediator counsel’s key objectives (i.e., educating the client on the mediation process, establishing realistic expectations and goals for the mediation, obtain the mock mediator’s independent evaluation on the value of the case, dealing with the anticipated negotiation tactics of opposing counsel, how the process can be structured during the actual mediation to maximize the strengths of the case, identifying all of the non-economic terms, if any, desired by the client in the final resolution and strategies to achieve those terms, etc.); and,
• Enter into a written agreement with the mock mediator that will protect the confidentiality and all applicable privileges.

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Richard L. Hurford is the President of Richard Hurford Dispute Resolution Services PC and a principal in ADRoit Dispute Resolution Services and Strongbridge Negotiation Strategists PC. He is the past chair of the ADR Section of the Michigan State Bar; the Macomb ADR Committee, the Oakland County ADR Committee, and the ADR Section of the Federal Bar Association for the Eastern District of Michigan. He is a professional with Professional Resolution Experts of Michigan (PREMi, https://premiadr.com), a Distinguished Fellow in the International Academy of Mediators (by invitation only), a member of the National Association of Distinguished Neutrals (by invitation only) and a member of the Michigan State Bar, the ABA, the AAJ, the DRI and the MDTC.