BEST PRACTICES

An Interview with Civil and Business Trial Lawyer Robert C. Shearman, Esq.

Robert C. Shearman, Esq. recently retired from the practice of law as a trial lawyer, having started his career in Miami in 1986. Bob practiced maritime litigation before he came to Fort Myers and practiced in a variety of civil litigation areas, including employment, Section 1983, civil rights and defense of real estate brokers and agents, among others. On behalf of the Lee County Bar Association, I interviewed Bob – a former law partner of mine, who is now a mediator.

Q:Now that you are a full-time mediator, what do you see lawyers doing that they could be doing better in mediations?

A:As advocates, I think many attorneys understandably look at a mediation in binary terms of winning and losing. When you’re a hammer, you tend to see all the world as a nail. Only if the case could be resolved according to the pre-mediation evaluation could it be “won.”

As a mediator, I see the value in listening to an opponent’s arguments, evidence and perspective in a more fluid process that allows for candid questioning and maybe even re-evaluation of a party’s position based upon developments during the mediation conference. This helps keep the advocate in us from falling in love with our own arguments, buttressed by the supportive echoes of “You’re right” from partners, staff and clients, and allows us to more objectively look at the case as a judge or jury might hear it. The process is designed so each side hears her or his opponent’s best pitch.

If this leads to the reasonable conclusion that the risks associated with proceeding with the litigation outweigh the likely benefits, settlement then becomes a smart decision rather than a capitulation. The “win” is achieved by eliminating the risk on terms the client can accept rather than exposing the client to an utterly unacceptable outcome at trial.

Q: What if the other side isn't listening?

A: Try to address the other party directly. Also, in caucus, tell the mediator specific, concrete points that you want the mediator to raise to the other side. Ask the mediator to relay those points and ask your mediator to bring the other side’s responses back to you. And be patient. Sometimes it takes time and repetition.

Q: What is the best way to educate the mediator about the case? A:

I am a big fan of providing mediation summaries to the mediator in advance of the conference. While I was guilty many times as a litigator of providing far too lengthy mediation statements, I do mean a summary - not a data dump of pleadings, depositions, reports and motions - but a condensed and thoughtful evaluation of facts, issues, evidence and prior settlement discussions. Too much information buries the important points. Too little leaves the mediator in the dark, unable to develop any advance strategy to make the mediation more efficient and successful. In most cases, three to six pages should be enough for a comprehensive summary.

Also, if there is information you think the mediator should know in order to facilitate a successful mediation, consider calling him or her to discuss it before or during the mediation conference. Some information may be best shared informally allowing the mediator to utilize it in a manner which avoids angering or embarrassing attorneys or parties.

Q: When should lawyers send their mediation statement?

A: I like to see mediation statements within a week to few days of the mediation. This allows me the time to review the statement thoughtfully, but still have it fresh in my mind when the mediation conference rolls around so that the salient points have not been lost in the wave of intervening mediations and other events.

Q: What do you think about lawyers sending their mediation statement to the opposing side?

A: There are times when this can be very helpful. Perhaps there has been a new development in case law, or a recent expert report, and allowing another party a chance to review it rather than being caught by surprise during the mediation conference allows for a reevaluation of the party's position. Particularly when dealing with institutional clients and insurers, this is key as it can be extremely difficult to bring about wholesale changes in their mediation evaluations on the fly.

Q: How do pleadings or motions help you understand the case, if at all?

A: Used strategically and not as part of an indiscriminate data dump, pleadings and motions can be helpful. When the mediator is permitted to use the materials to highlight a risk to an opposing party, they may prove persuasive. When accompanied by an admonition such as, “This shows the affirmative defense or claim was not pled, but don’t draw the other side’s attention to it because I want to surprise them at trial,” they are not useful.

Q: What is the best use of exhibits at mediation?

A: Photos and videos are often key. Society has come to expect them in support of virtually any persuasive presentation. If the mediation is virtual, be sure you understand how to share your screen and have your exhibits readily accessible, so you're not fumbling through the presentation and distracting from your message. Also, don't fall into the trap of robotically reading from a power point presentation. It can devolve into tedious impediment to settlement rather than the impactful statement you intend.

Q: How can lawyers make opening statements effective in mediation?

A: The most effective opening statements present the salient aspects of a party’s case without personal attacks, hyperbole or bombastic threats. They convey confidence, careful preparation and a command of the litigation process. They diffuse rather than arouse personal animosity. If an attorney is confident in his or her case, she or he should display this by explaining the factual, legal, procedural and evidentiary reasons for their confidence. It is rare that an opening statement seals the deal in a mediation, but it is not uncommon for a vitriolic, tone-deaf opening to lead to an early impasse.

Q: Should the lawyer’s goal be to get you “on their side” or does that matter?

A: The lawyer who focuses on the mediator as his target audience misses the point. Mediation provides one of the few opportunities in the litigation process for an attorney to speak directly to the opposing party. The party and his or her attorney should be the target audience. If the case is compelling, the mediator will pick up on this. The goal should be to give the mediator the tools to get the case resolved. I look for an attorney to help me help them. Let me know if you are looking for me to raise issues with your client or opposing counsel which might be better received coming from me than you. Level with me about your goals and expectations. I have a lot better chance of helping you to your destination if you tell me where you really want to go.

Q: Does the format of a mediation—Zoom mediations or in-person mediation—have any bearing on whether the mediation is more likely to be successful?

A:

Conventional wisdom for many years was that mediation required in-person attendance by all parties and counsel. The pandemic changed this. Out of necessity, the vast majority of mediations came to be conducted remotely almost overnight. I don't see the pendulum swinging back. This is not to say that in-person mediations are not useful in some cases. They absolutely are. There is nothing like the personal impact of face-to-face interaction to evoke a visceral response in a catastrophic injury

By Carlos Kelly, Esq.

case, for example. In strictly transactional matters, the added efficiency of a virtual mediation may be more conducive to settlement because of its efficiency and cost savings.

Whether the mediation is in person or remote, however, it is the failure to ensure the case is sufficiently developed, or that the attorneys and parties are sufficiently empowered to negotiate, that dooms a mediation to failure. If the parties are determined to simply “check the box” by attending mediation, or don't have the information or discretion necessary to resolve the case, no amount of persuasion from the mediator will make a settlement happen.

Q: What if it’s necessary to cancel or reschedule a mediation?

A:Sometimes this may happen when lawyers get close to mediation and realize a dispositive motion must first be filed or a deposition must first be taken. Staying on the right side of the case management deadlines will usually eliminate or minimize the need to cancel or reschedule for case deadline issues. But if something does come up, try to let your mediator know no later than two weeks before the mediation. This allows your mediator an opportunity to re-book the time with another set of parties, minimizing wasted time and expenses.

Jill Backer has over 20 years of experience building and executing a successful employer outreach program for law schools. Before her current role as associate dean of professional development at Ave Maria School of Law, she served in the same role at Pace University School of Law, as well as in employer relations at Brooklyn Law School.