January 30, 2024

 Preparing for negotiation in mediation requires thorough consideration of alternatives to increase the likelihood of a successful resolution. To properly formulate and evaluate competing settlement proposals offered during the mediation it is critical to rigorously examine possible alternative proposals and options before the mediation begins.

Before negotiations, parties and their counsel should consider:

1. The Best Alternative to a Negotiated Agreement (what mediators and negotiators commonly refer to as the party’s “BATNA”);
2. The worst deal they are willing to accept (“reservation point”);
3. The other side’s BATNA.

Knowing one’s BATNA is essential for informed decision-making. Without it, parties risk accepting an offer worse than their alternatives or rejecting a better one. A BATNA clarifies at what point it makes sense to walk away from an unsatisfactory agreement and to understand the consequences of not reaching a resolution. Clients and their counsel need to think about the consequences of not resolving the conflict because it affects the choices they make during negotiation.

Once parties know their BATNA, they can assess whether their reservation point is reasonably aligned with their BATNA. While setting a reservation point is necessary to avoid a bad deal, parties should make sure to consider their realistic alternatives when determining their reservation points. In other words, if the goal of a negotiation is to put oneself in a better position than one’s alternatives, then a reservation point should be slightly better than one’s BATNA. Consequently, parties should avoid setting reservation points too high, as it may lead to rejecting offers better than any alternative outside the deal.

Clients and their counsel should also consider the other side’s BATNA for two reasons: (1) to assess the parties’ relative negotiation power and flexibility, and (2) to estimate realistic settlement ranges. A party may have less power if the other side’s BATNA is superior, and vice versa. Parties often fail to assess power accurately, leading to negotiation pitfalls (e.g., rejecting offers better than any alternative, or accepting offers worse than their alternative). Even before the mediation, the parties and their counsel should spend time realistically assessing their relative power so that they can make sound strategic decisions at the mediation during negotiations.

To read how Castaybert PLLC can assist you with mediation, click here.

January 30, 2024

 The success of a negotiation hinges on effective preparation. Parties and their counsel must prepare in advance to formulate a proper proposal, evaluate competing proposals, and consider a negotiation strategy that manages expectations and potential concessions. This preparation helps minimize the risk of common negotiating mistakes. Understanding the mediator’s goals and techniques will assist both the advocate and the advocate’s client in understanding the mediator’s role and anticipating issues and questions likely to come up during mediation.

The mediator’s role is to assist parties in gathering pertinent information across four main areas: (1) identifying parties’ interests; (2) evaluating alternatives; (3) identifying objective standards; and (4) generating potential solutions.

From the mediator’s perspective, understanding the parties’ interests is paramount. Interests are the parties’ underlying concerns, needs, and fears that are motivating the conflict. Shifting the focus from the parties’ positions (what they want) to their interests (why they want something) yields several advantages, including discovering solutions aligned with the parties’ true needs, uncovering shared interests, and revealing potential solutions.

The mediator will ask your client to identify the client’s interest and seek to have the client understand their counterpart’s interests. The mediator may ask your client to engage in a “role reversal.” This technique, usually performed in separate sessions, requires parties to imagine themselves in the other’s position, to foster a deeper understanding of each side’s concerns. The mediator may use this technique to offer insights into the other party’s potential interests through leading questions.

The mediator will seek to identify common ground and divergent interests.

Divergent interests may fall into five principal categories:

1. Different Valuations (parties have different levels of preference for various issues).
2. Different Expectations (parties have different predictions about an event).
3. Different Risk Attitudes (parties are willing to take different levels of risk).
4. Different Time Preferences (parties place different values on when a particular event occurs).
5. Different Capabilities (parties differ in skills, aptitudes, and resources).

The mediator will seek out mutually beneficial trades by identifying “low-cost options” – things of value one party may provide to address the other party’s interests while advancing their own to address diverse interests while promoting collaborative solutions.

When preparing for the mediation, remember that the mediator will play a key role in the negotiation. Clients and their counsel should prepare by considering the mediator’s goals and perspectives and should be ready for the mediator’s questions and possible interventions as part of the overall consideration of the parties’ settlement negotiation and alternatives in resolving the dispute.

To read how Castaybert PLLC can assist you with mediation, click here.

December 21, 2023

Depending on the preferences of the parties, the mediation can take different formats. As explained in a previous post, after the pre-mediation conference, the mediation may either begin with a joint session with all parties present or go straight into an initial caucus with just one party and the mediator. As each dispute is unique, the mediation session itself is flexible and can involve a mix of joint sessions and private, individual caucuses.

The initial caucus is the first confidential meeting between the mediator and one party and their counsel. An initial caucus allows the mediator to better understand the dynamic of the dispute, identify common interests between the parties, and determine how to approach a later joint session with both parties to foster open communication. The private nature of a caucus encourages the party to be open and honest which is an essential component of addressing the underlying issues that led to the dispute. This in turn helps the mediator guide the parties toward a mutually beneficial solution.

Typically, the goals of an initial caucus include:

• Privately clarifying the major and minor issues at hand.
• Providing a confidential environment for a party to vocalize their goals to the mediator.
• Reviewing a party’s ideal resolutions and settlement proposals.
• Clarifying any misunderstandings.
• Building trust between the mediator and the participants so individuals can freely share their emotions and concerns without fear of judgment or consequences.
• Discussing new facts relevant to the dispute.
• Asking questions to determine each parties needs and goals which aids in finding mutually beneficial solutions.
• Creating an opportunity for the mediator to manage expectations for the mediation process by explaining their role as a neutral facilitator and to provide helpful guidelines for the parties engaging in the mediation.

It is important for the individuals taking part in the caucus to consider what information they are okay with sharing with the other party and disclosing their confidentiality preferences to the mediator prior to the caucus taking place.

Subsequent caucuses can take place at any stage of the mediation after an initial caucus or after a joint session with both parties has occurred. A subsequent caucus can take place for a multitude of reasons including:

• When there is a specific issue one party wants to privately discus with the mediator.
• When there is a deadlock in negotiations.
• To work through settlement options and/or concerns.
• To further explore new solutions to the dispute or the consequences of the solutions proposed in the joint sessions.
• To address concerns with the other party’s conduct during joint sessions that is impeding finding a mutually beneficial resolution.
• When there is a new issue that impacts the dispute.
• To discuss pursuing a new negotiation technique in a later joint session.

While some issues and conversations are better suited to a private caucus setting, minimizing joint sessions of both parties actively engaging in finding a solution can enhance feelings of distrust between adversaries. Therefore, as the goal of mediation is for the parties to come to a mutually beneficial resolution, it is critical for the parties to build trust through communication in joint sessions to mitigate this potential issue arising from private caucuses.

To read how Castaybert PLLC can assist you with mediation, click here.

July 10, 2023

When a company first gets wind of a potential lawsuit, often the first step is to begin implementing a litigation hold.

A litigation hold is a mandate within a company or organization to preserve relevant information. When a company reasonably foresees a lawsuit or investigation, it must begin preserving documents and information. Ensuring a litigation hold is completed thoroughly and effectively is key to satisfying the preservation obligations of litigation.

What must be preserved?

The scope of documents that must be preserved when litigation is foreseeable is often unique to the company, the dispute, and the amount of information stored electronically. Companies usually do not need to preserve the entirety of their information forever. But, when litigation or an investigation is reasonably foreseeable, there is a common law duty to preserve evidence related to the lawsuit. This duty seeks to minimize the spoliation of evidence to ensure all potentially relevant documents are kept and can be used later in litigation.

When should a business reasonably anticipate litigation? 

The most challenging aspect of initiating a litigation hold is determining when a duty to preserve arises. Courts have generally found that a business should anticipate litigation when they

• Receive notice of a credible threat of litigation or an investigation.
• Receive a formal complaint.
• Are involved in a pre-litigation dispute (such as receiving a demand or cease and desist letter).
• Become aware of an internal complaint or accident.

Implementing and overseeing a litigation hold

 When a business first receives a complaint or becomes reasonably aware of a potential legal claim, it should implement a litigation hold promptly. A litigation hold usually takes the form of an instruction given to relevant employees of the company to suspend document destruction, preserve certain information, paper documents, electronic documents, and records that would be relevant to the potential investigation or lawsuit.

A typical timeline of a litigation hold is as follows:

• A business receives notice of a threat of litigation or an investigation.
• A team within the company is created to oversee the litigation hold.
• The team develops a plan by researching the internal document preservation procedures and identifying key personnel who have had access to the relevant documents, records, and information.
• Drafting and distributing the litigation hold notice.
• Routinely ensuring all pertinent individuals are following the litigation hold by tracking and systematic reminders.
• Modifying the hold if new issues arise and lifting the hold when there is no longer a threat of an investigation or litigation.

It is also advisable to meet with any company IT personnel to discuss the accessibility and storage locations of any relevant electronically stored information to ensure full compliance with the litigation hold.

The stakes of failing to preserve information

 Even though document preservation can be expensive given the large amounts of physical and electronically stored information, a company must postpone standard destruction processes and ensure the relevant documents are preserved to protect all parties’ right to a fair trial. Failing to preserve the relevant documents exposes the company to risks of significant legal consequences such as monetary sanctions or a default judgment.

To read how Castaybert PLLC can assist you with litigation, click here.

July 5, 2023

At the beginning of a joint session, the mediator will begin with an opening statement to frame the upcoming mediation.

Typically, a mediator’s opening statements will include the following things:

• An introduction of all parties in the room engaging in the mediation.
• An introduction by the mediator of themselves to provide the parties with context on their background and promote credibility.
• A statement to describe their role as a neutral facilitator in the process of mediation, differentiating themselves from the typical courtroom judge.
• A note on the confidentiality requirement of mediation.
• An overview of the forthcoming mediation process to clarify the procedures and timeline for all parties (such as upcoming joint sessions or private caucuses).
• An overview of common practices during the mediation including information gathering, option exploration, and testing of alternatives to find a flexible resolution.
• Motivating all parties to honestly self-disclose their goals and position to the others and the mediator.
• Suggested ground rules for the joint session including keeping an open mind, letting each party speak, continuous good faith efforts and cooperation, and productive communication to actively search to find common ground.
• A reminder of the overarching goals of mediation: finding a mutually beneficial solution for both parties through self-determination.
• An encouraging statement on the statistics of mediation, the savings in time and cost, and the likelihood of a win/win settlement.
• Taking time to ask the parties if they have any questions.

The mediator’s initial statements at a joint session helps ensure all parties have a clear understanding of the approaching session as it outlines the structure, procedures, guidelines, and goals for the mediation.

To read how Castaybert PLLC can assist you with mediation, click here.

June 26, 2023

Depositions are a key discovery practice in litigation to obtain testimony, clarify the facts of the case, and directly speak with the deponent. Depositions are a tool used during discovery where a witness or party to the lawsuit gives testimony under oath outside the court. Conducting depositions is an effective way to try and strengthen the client’s case by learning more about the deponent’s position, evidence, and arguments.

Some of the benefits of conducting depositions include:

1. Providing an opportunity to question witnesses under oath to evaluate credibility.
2. Gathering relevant information and evidence.
3. Preserving testimony and evidence that could be lost given lapses of time.
4. Obtaining evidence to support a motion for summary judgment, which if granted would conclude the case and save both parties time and expenses.
5. Providing an opportunity to request and obtain documents from parties and non-party witnesses.

Conducting thorough depositions is an essential aspect of litigation, as the testimony provided during depositions can be used later in trial for evidence, to prove an allegation, or to challenge the other party’s position.

To read how Castaybert PLLC can assist you in litigation and arbitration, click here.

June 12, 2023

As each dispute is unique, the mediation session itself is flexible and can occur in a few different formats. The mediation can involve a mix of joint sessions and private, individual caucuses.

The joint session is a format for mediation that places all parties in the same room to facilitate direct communication and discussion between participants. Often an initial joint session will be followed by independent caucuses between only a party and the mediator, allowing a more private discussion to take place. We will discuss the use of independent caucuses in the mediation procedure in a future post.

If a party feels strongly about a preference for the approach of the mediation in the use of joint sessions and/or caucuses, they may make that request directly to the mediator in a pre-mediation conference, statement, or confidential side letter.

Three common ways joint sessions can be used in mediation are:

1. After the mediator’s opening statements, the parties may stay convened in a joint session and address the other participants and make opening statements. Opening statements can be made by the party, counsel, or both. Opening statements typically touch on a party’s position and overall goal for the session, and hearing the other party’s statement presents an opportunity to listen to find common ground. After opening statements are made, a larger discussion of the dispute and central issues and concerns can begin facilitated by the mediator.
2. After the mediator’s opening statements, the parties may remain in a joint session and address questions and concerns together, without making opening statements.
3. After independent caucuses with a party and the mediator have met, the mediator may suggest all parties convene to engage in a joint session to navigate specific concerns and issues.

Joint sessions have several benefits including:

• The open dialogue between participants of the mediation permits the parties to directly speak to each other and facilitates clear communication of the parties interests, concerns, and goals.
• Having all the parties in the same room to hear each other may build trust and empathy and increase the likelihood of finding a mutually beneficial solution.
• Joint sessions promote a high level of engagement between the participants where parties can ask questions and share individual insights into the dispute.
• Joint sessions can be efficient in saving time and money as they bring all parties together in one session, rather than two separate caucuses.
• Joint sessions allow the mediator to observe the dynamics between the participants, which can aid in the mediator’s understanding of each party’s position and finding a mutually beneficial solution to the dispute.

Either party or their counsel may want to avoid a joint session when there is a power imbalance between parties, or when face-to-face discussions may lead to more arguments and unpredictable emotions. A 2015 JAMS survey reported that there has been “a decline in the use of joint sessions,” and litigators and mediators believe this change is occurring because in certain instances upfront communication can increase hostility and be “counter-productive”.

But, in other cases, upfront dialogue between parties can build trust and empathy as it allows each side to see the concerns and goals of the other more clearly, and to work together with the mediator to find a mutually beneficial solution to the dispute.

To read how Castaybert PLLC can assist you with mediation, click here.

June 12, 2023

In a discussion of the decision by the U.S. District Court for the Northern District of California in the In re Google Play Store Antitrust Litigation Case, a recent article from Davis + Gilbert highlights the obligations parties face to preserve important documents and information during litigation.

Google was sanctioned and required to pay the Plaintiff’s reasonable attorney fees due to its failure to preserve relevant chat messages on its internal platform Google Chat. The default Google Chat settings typically only keep messages for 24 hours, but the settings may be updated to retain messages for longer periods. Google became involved in this litigation in September 2020, and it had the capability to preserve the history of messaging for the relevant employees, but it failed to do so. The Court sanctioned Google under Federal Rules of Civil Procedure 37(e) for failure to preserve relevant information.

Ensuring all key documents are preserved is paramount to ensure all available resources and evidence are available to all parties to the case to maximize fairness, consistency, and due process.

It is advisable to consult with an attorney before and during litigation to ensure the appropriate measures have been taken to preserve essential documents and information (standard and/or electronic) to avoid later sanctions during litigation.

To read the full article from Davis + Gilbert, Sanctions Against Google Show Importance of Litigation Document Preservation, click here.

To read how Castaybert PLLC can assist you in litigation and arbitration, click here.

June 5, 2023

Before the mediation, at the invitation or suggestion of the mediator, a party may elect to send the mediator a confidential side-letter in addition to the pre-mediation statement exchanged with the other party. The side-letter for the mediator’s eyes only is an opportunity to communicate additional private or sensitive information, interests, concerns, or requests to the mediator without disclosing it to other participants. These letters typically inform the mediator about the party’s settlement preferences, financial concerns, personal information, or information about the other party that might impact the mediation but which for one reason or another the party does not want to share with the other party at the time of mediation. Confidential side letters to the mediator are private and are not shared with any other participants of the mediation, unless permission is explicitly granted to do so. The mediator is prohibited from sharing any aspect of the confidential letter with any other participant of the mediation as they are bound by the rules of confidentiality, and a party is not required to submit a confidential letter even if other participants do.

The purposes of the side-letter to the mediator are to provide the mediator with a deeper awareness of a party’s position and concerns, to allow the mediator to better understand the potential hurdles or proposed solutions or settlement offers, and to allow the mediator to understand the parameters of the negotiation and potential alternative solutions or paths to settlement than the opening positions set forth in the pre-mediation statements.

Among other things, the confidential side letter to the mediator may allow a party to:

• Disclose sensitive information or concerns privately so that the submitting party’s position is more transparent for the mediator.
• Allow the mediator to understand the party’s underlying preferences and financial and emotional interests which the party is hesitant to express to the other side.
• Suggest alternative negotiation strategies or settlement proposals that the party may not want to share with the other participants at the outset of the mediation but that may be relevant later in concluding a deal.
• Allow the party to make its position clear to the mediator although the information cannot or should not be shared with the other party because of a disparity of information or an imbalance in leverage or bargaining power between the participants.
• Providing context related to a participants cultural or religious background, allowing the mediator to better assess the dispute and satisfy the most pertinent interests and concerns.
• Allow the party to share sensitive information with the mediator that might alienate or even infuriate the other party and derail the mediation at the outset in order to preserve a working relationship with the other party during the mediation and thereafter should the mediation prove to be successful.

There are potential downsides to the side-letter to the mediator:

• A confidential letter to only the mediator reduces transparency between the parties themselves and could hinder trust and open communication.
• Not sharing key concerns with the other side doesn’t allow the other party to fully hear your position and interests and the ability to find a mutually beneficial resolution.

Different mediators have different preferences for confidential letters, so it is advisable to consult with the mediator directly to determine the mediator’s preferences for the format and nature of the statement. In any event, the side letter itself should make clear that it is confidential and for the mediator’s eyes only and is not to be shared with the other party.

As the mediator is a neutral third party between the participants, sharing sensitive and private concerns and interests with the mediator before the mediation begins can highlight the deeper dynamics of the participants and the dispute, helping the mediator in finding a beneficial resolution for both parties. It may also be a useful tool to further advocate for your position in mediation, and ultimately to avoid litigation.

To read how Castaybert PLLC can assist you with mediation, click here.