Important Considerations for a Successful Mediation
1. Be prepared! This means having a good understanding of the mediation process, the issues in dispute and a good understanding of both sides’ positions on the issues. More importantly, however, it also means BEING PREPARED TO SETTLE. This requires a different MINDSET from thinking about winning versus losing. You are NOT at the mediation to “win” the dispute. Successful mediations usually occur when the heat is turned down and the process becomes one where the parties try to find common ground. To be successful you first need to set your expectations and intentions with the sole focus being on getting to a resolution. Being prepared is also critically important because judgments will be made by each side about the other side’s lawyer, expert(s) and about you as a party. You do not get a second chance when making a first impression.
2. If you have never participated in mediation, have your lawyer explain the process until you feel comfortable. Make sure your lawyer understands what YOU want. Some lawyers are much better than others as trial lawyers. Others are far better as mediation counsel. Trial lawyers are typically highly competitive and can be very argumentative. After all, the job at trial is to win. A good mediation lawyer needs to understand that the job at a mediation is to find common ground to get to a resolution. This requires a different skill set. A good mediation lawyer needs to be patient, less emotional and a good problem solver. The same holds true for your expert if the expert attends the mediation. As the client, YOU need to make sure your lawyer understands YOUR EXPECTATIONS in terms of (a) what YOU want out of the mediation; (b) the role YOU, your lawyer and your expert will each play at the mediation and (c) the goal of being diplomatic, cooperative, open minded and patient at the mediation. Every mediator appreciates when a party behaves in this manner.
3. Make sure that YOU have what you think you need to make a reasonable evaluation of your dispute for settlement and make sure that YOU have provided the other side with everything they need to do a reasonable evaluation. It makes little sense, and it is extremely frustrating to the mediator, when parties show up for a mediation and one party says they are not prepared to negotiate at that time because they still have not received X or Y. If not scheduled by the mediator, request a pre-mediation conference with counsel weeks before the mediation to cover a number of topics, including this one. If the dispute is not ready to be mediated, the mediation should be postponed. In complex cases, two sessions are sometimes needed to allow the claimant’s expert to make a presentation which is then followed 30 days later by the defendants’ expert making a counter presentation. This may be the first time each side gets to see the other party’s expert and to hear their opinions and the bases for those opinions. In such circumstances, a third mediation is really the one that is aimed at achieving a resolution so in this instance, perhaps three days of mediation should get scheduled usually at least thirty days apart. The gives each side ample opportunity to consider what they learned and to factor this into their evaluation and settlement expectations. Surprises never work well at mediation. It does nothing but irritate the other side; destroys any trust that may have been developed and it is very destructive to the mediation process.
4. SIMPLIFY. Develop themes for your case. You need to know your facts and to be able to convey the important facts to the mediator but do NOT get bogged down in the weeds. Keep your focus on the day’s purpose which is to achieve a resolution. Spending time on inconsequential matters just detracts from this purpose.
5. Have the necessary decision-makers in attendance! This is not always possible for a variety of reasons. A board, for example, may have to approve a settlement and it would be impractical for all board members to attend. People may be far away from the location of the mediation which may impact their ability to personally attend although with the use of Zoom and other virtual meeting applications, personal attendance can now be accomplished regardless of distance. Whenever possible, however, having the decision-makers present is essential to a successful mediation. Mediation may be the first time the decision-makers actually get to meet the other side and their counsel. It might be the first time they get to meet and evaluate the other side’s counsel. They get to learn about the other side’s position over the course of the day with the assistance of the mediator. They get see how their counsel and expert(s) match up against the other side. This may provide information that allows for the calling of an audible that resets or adjusts the settlement position that the party had going into the mediation. If the decision-maker is not present to experience the process, it becomes very difficult to have a telephone call and to persuade the decision maker to change their position in a way to allow a settlement to occur. The change occurs because the impressions of the strength or weaknesses of the respective positions often change as a result of participating in a mediation. When someone does not participate but gets a phone call asking for a contribution of $X dollars more or a reduction in the demand of $Y dollars, the decision-maker on the other end of the call will usually first ask “What’s changed?” This can be avoided by having all decision-makers attend. If a decision-maker just doesn’t feel it’s a good use of his or her time, persuade them otherwise. Mediation is often the best chance YOU have at getting the resolution that YOU want. What could be more important?
6. Once at the mediation, listen to the mediator and be honest whenever communicating with the mediator. This makes the mediator’s job easier and will be much appreciated by the mediator which, in turn, often will be beneficial. The job of the mediator is to assist the parties in achieving a resolution. This frankly does not mean that the resolution has to be fair. There may be circumstances in which one party is willing to make an inequitable deal out of necessity or sometimes out of ignorance. Despite this, most mediators I know try to get the parties to negotiate a fair and equitable resolution. Listening to the mediator is key to this process. The mediator often leads the discussions in a manner that will ultimately conclude in a fair resolution. Listen carefully to such discussions and do not simply argue or disagree. Typically, these discussions will send you a message.
7. Do NOT engage in a negotiation strategy where you want to know what others are paying or receiving before you are willing to make a commitment in this regard. You should be well enough prepared to know YOUR settlement value range before attending the mediation. You should always have some contingency factor built into the figure so that you can adjust, if needed, based on what you learn during the mediation. If you can settle the matter within that range, you should be satisfied. When you tie your settlement position to the settlement positions taken by others (usually out of ego), YOU have now lost control over getting a satisfactory outcome. Just because some other party is being unreasonable or has mis- evaluated the case, does not mean that you have to do the same. Too often, however, in multi-party cases, some parties will not commit to a settlement position until they know what other parties are willing to do. This is frankly a destructive tactic in mediation and of no benefit. Good mediators will never tell the other parties what others are willing to contribute. Getting a settlement that is satisfactory to YOU is all that should matter.
8. I am a big believer in Parkinson’s law that “work expands to fill the time available for its consumption.” Just because a mediation is scheduled for 10 hours or two days does not mean it has to last 10 hours or two days! That said, mediation is a process. It requires time to build rapport and trust; to understand the issues well enough to accurately convey and discuss the parties’ respective positions and to assist the parties in hopefully achieving common ground and getting a resolution. Mediation requires patience and a mindset that is geared towards getting a resolution. REMEMBER – you cannot lose a mediation! Be patient, open-minded and listen! Over 90+% of disputes settle.
If I can help you by acting a mediator or by providing a critique of your evaluation of your risk and exposure or by providing a pre-mediation consultation to advise you on how to get the best result in mediation, please email me at jim@castlesmediation.com.