Business, Real Estate, Employment, Personal Injury, Construction Defect
Stacie Feldman Hausner, Esq. is a mediator with ADR Services, Inc. Prior to her mediation career, she was a lawyer for 20 years, specializing in high stakes litigation for both plaintiffs and defendants. She primarily has litigated and mediated business and commercial cases, personal injury cases, employment cases, real estate cases, and construction defect cases. She received an LL.M. in Dispute Resolution from the Straus Institute at Pepperdine University and is now an Adjunct Professor there teaching Mediation Theory & Practice and the Mediation Clinic. She has mediated hundreds of cases for ADR Services, Inc., the Los Angeles Superior Court, the Department of Consumer and Business Affairs, the Department of Fair Employment and Housing, and the Center for Conflict Resolution. Stacie is known to be tenacious with a calm and friendly demeanor and a keen understanding of legal issues. She is honored to have been recently profiled in the Daily Journal August 18, 2017 issue. For more information on Stacie Hausner, including some of her past case summaries, please visit her website at www.staciehausner.com.
Q&A with Stacie Feldman Hausner, Esq.
Q: What is the biggest mistake you see counsel make in mediation?
-- Lynne Hermle, Orrick
A: I think that counsel should not reveal their true bottom line early in the mediation. Although a bottom line can help mediators ascertain potential zones for settlement, I think the revelation compromises counsels' ability to optimize their settlement outcomes. First, mediators do not need a bottom line number to settle a case. They can learn about the settlement zone by reading the pattern of concessions. Second, practically speaking, a true bottom line does not exist. Parties typically are willing to take less than a stated bottom line to get a case settled, especially after a protracted negotiation dance of concessions. Third, when counsel reveals a bottom line, that number often naturally becomes the settlement point, even when mediators attempt to obtain better settlement figures. I believe that counsel can optimize settlement outcomes by not revealing the bottom line until arriving near that number. Counsel should let the negotiations naturally occur so that the mediator is not targeting a number for settlement. If counsel wants to give the mediator an idea of their settlement range, counsel should reveal a range that is higher than a true bottom line, so that the mediator is working at a settlement that is more advantageous for counsel. Therefore, revealing a true bottom line early in a mediation, can result in a less than optimal settlement outcome.
Q: How important is a trial date to a successful mediation?
-- Paul Kiesel, Kiesel Law LLP
A: The procedural posture of the case can be exceptionally important to the success of a mediation. Seventy five percent of cases settle within thirty days of trial. In factually complicated cases, ongoing damages cases and/or cases dependent upon expert testimony, settlement usually does not occur until close to the trial date and after the discovery and expert cut-off dates. This is because attorneys need all of the information before being able to accurately assess the value of their case and risk at trial. In theses cases, mediations are much more successful closer to the trial date. However, in less factually complicated cases and set damages cases, a trial date becomes less important to the success of the mediation. In these case, often times, it can make sense for the parties to settle early and use the costs and fees that they would have spent to fully litigate the case, to bridge any potential impasse that would exist at a later mediation. Additionally, in cases where the parties to the dispute have an ongoing relationship, or a potential for an ongoing relationship, an early mediation can be very beneficial because an early resolution of a dispute can benefit the parties by preserving that relationship.
Q: Do they recommend exchanging briefs with opposing counsel? Why?
-- Brian Kabateck, Kabateck Brown Kellner LLP
A: I recommend exchanging briefs with opposing counsel, and submitting in a separate memorandum to only the mediator, any sensitive information or legal arguments that you do not want opposing counsel to learn. Mediators are able to extract concessions and move the parties toward settlement at a mediation by sharing the other side's perspectives, positions and interests. However, it is more difficult for the opposition to change perspective when learning of a legal argument or information for the first time during the mediation. By sharing the brief, you are enhancing your presence at the mediation, not doing a favor to the opposition. You give the opponent time to understand the strength of your case, so that they can do the necessary research and risk analysis that may allow them to evaluate the case closer to your settlement figures. Furthermore, often times, the decision makers with ultimate authority are not present in the mediation (such as with companies requiring board approval or with insurance carriers), and accordingly, cannot learn of your arguments as the mediation unfolds. A mediation brief is a succinct and effective tool to allow the ultimate decision makers to learn of the strength of your case, and hopefully, give authority at a settlement figure more beneficial to your client. Therefore, I believe the best advocacy in mediation is to write a great brief and share it with counsel.