Developing a good understanding of mediation dynamics and being able to deploy effective strategies in connection with mediation is as important as anything you do as a litigator.
1. The mediator should maintain a positive, open, neutral relationship, with both attorneys and parties.
Explain your experience as a lawyer, litigator and mediator. Provide a copy of your vita. Explain your role as a neutral third-party settlement helper, that you will not force the parties to sign an agreement or impose a ruling like a judge.
Never embarrass a lawyer in front of their client. If you need to tell the lawyer about something, do it privately.
Explain the mediation process, the importance of asking clarifying questions, and the meaning of the language in the MSA, that if you sign it, you are stuck with it, that there are no “do overs”.
Build trust, a relationship, and a connection with the parties and lawyers.
2. What you do before mediation is often more important than the actual mediation.
Lawyers tend to procrastinate before mediation, slapping together a mediation brief at the last minute and then showing up at the mediation, planning to fill in gaps when they get there. This is a common and very big mistake. There are several reasons why this is a bad idea.
For one thing, if you wait until the eve of mediation to prepare, you may find that something important to evaluating the case is missing. You may not have up-to- date values or retirement information. It may be too late to use the information at mediation. This can jeopardize the whole process.
Early preparation gives you the best chance to be sharp at the mediation. Many negotiation experts say “Prepare, Prepare, Prepare.” Renowned UCLA basketball coach John Wooden said, “Failing to prepare is preparing to fail.”
It takes time to organize and digest case information. It takes time to develop cogent theories of the case. It takes time to formulate bargaining points. You should basically be almost as prepared for mediation as you would be for trial.
3. In a world of suspicion and cynicism, you must trust the process.
One of the most common hurdles to getting a case resolved is a lack of trust. One or both sides are concerned that making a certain move will show weakness or jeopardize one’s settlement position. The fact is that one must have a certain degree of trust in the process to achieve success at mediation. Sure, on rare occasions, the other side is not acting in good faith and is essentially wasting your time. Other times, the other side hopes to get you to move off of an extreme bargaining position without responding in kind. Once in a while, you get burned. But the best thing about mediation is that you are ultimately in control of what you do. If you get burned, you can always dig in or walk away. Generally, good will is awarded at the end of the day.
4. There are no shortcuts.
For the most part, the face-to- face, messy process of mediation is necessary to get the case resolved. There are at least two reasons for this. First, the parties are always concerned about moving “too fast” in mediation because they don’t want to project fear or a lack of confidence in their case. This can be a problem if a party starts at a particularly unrealistic position. Second, parties often show up with firm expectations. Adjusting those expectation can be a painful and slow process, requiring one or more parties to proceed through various mental and emotional stages including denial, anger, frustration, sometimes grief and eventually acceptance. This takes time and work. It requires patience. There are no short cuts. Half day mediations rarely result in an agreement
5. If you don’t share it, it doesn’t exist.
A common mistake in mediation is that a party has important information that it refuses to share with the other side. For example, in a family law case, the defendant might have an appraisal from a certified appraiser. A petitioner might have a witness lined up to testify at trial who has not yet been identified in discovery. Sometimes a lawyer has expert who might testify at trail, but does not want disclose the expert.
It should be obvious that such information is absolutely useless in mediation if not shared with the other side. If you don’t share the information, by definition, it will not impact the other side’s settlement position.
If this is so obvious, why do parties often hold back information? I often hear that a party wants to “save” the evidence for trial if the case does not settle. But this is almost always foolhardy. Given our broad discovery rules and pretrial disclosure requirements, the chances of pulling off a surprise at trial are slim to none. Plus, most cases eventually settle. Statistically, if more than 90 percent of cases settle, the fear of jeopardizing a perceived advantage at trial materializes only one out of 10 times at most. The benefit of concealing information is far outweighed by the benefit of disclosure. In the end, if the information you are “saving” is really devastating, the time to disclose it is now.
Most cases settle, often at mediation. Figuring out how to maximize your case outcome is therefore critical. Respond to the pre-mediation information requested by the mediator. Prepare early. Trust the process. Be patient. And tell the other side about anything material that should impact the case. If you follow these important practices, you will put your case in the best position to resolve on favorable terms.