Whether you represent a party who has turned to mediation of its own accord, or you’ve been sent by a judge, it’s probably because somebody involved believes that mediation is a cheaper and faster way to resolve disputes than litigation. That can certainly be true. But there’s a big caveat. For the savings to be realized, the mediation has to succeed, generally. Of course, there’s more than one way to define “success.” Matters that don’t resolve at the mediation table sometimes settle just a few days or a few weeks later, and the mediation may have had a hand in helping parties inch closer to settlement. For our purposes, though, we’re going to assume that you’re hoping to come out of mediation with a resolution in hand. If mediation fails, however, everyone involved will have invested precious time, energy, and money in a process that didn’t save anybody from expensive litigation. So it makes sense to take mediation seriously, and to properly prepare yourself and your client for the unique challenges of the process. Below, we offer a few tips to help make your mediation successful.
Be Ready to Do Your Homework. Mediation is a confidential process that plays out away from the watchful eye of a judge or a jury. There are no rules of evidence. There’s no stenographer in the corner, memorializing your every word. It’s tempting to think you can just show up and hash things out on the spot. But if you want come to an agreement your client can live with, it’s important not to under-prepare. The mediation process relies heavily on each party having a thorough understanding of its own case. So do your homework. Even when mediation takes place before discovery, you need to be able to state what kinds of evidence you intend to use. Come prepared with a realistic idea of settlement numbers, which requires understanding what it will cost your client if the case doesn’t settle. Also consider what non-monetary options there are for resolution. Failing to prepare for a substantive discussion and resolution is the quickest way to turn the mediation into a pointless exercise.
Be Ready for Feelings. Mediation seems like it should be the friendlier, gentler cousin of litigation. But think about litigation: when you start working with a new client, what’s one of the first things you tell them? “Don’t talk to the other side!” Counsel, judges, court personnel, and the litigation process itself are powerful filters for the unpleasant emotions that are inevitable in any serious conflict. Mediation, by comparison, is virtually filter-free. There’s nothing gentle about two adversaries sitting down together to confront each other’s arguments and demands. Prepare yourself, and your client, for anger, resentment, disappointment, and hurt feelings. Don’t be fazed by eye rolling, arm crossing, sighing and yelling. It’s normal. If you show up prepared for the emotional challenges of mediation, you’re less likely to be surprised and derailed by them, and the likelihood of a successful resolution increases dramatically.
Be Ready for the “Walk Away” Moment. At some point during the mediation, someone will likely want to get up and leave. Often, this moment is punctuated by helpful declarations like “We’re outta here,” “We’re done,” “See you in court,” or my personal favorite, “See you in H*ll.” This moment is really important. It’s cathartic. It’s real. It’s also not necessarily the end of mediation. More often than not, when the heat of the moment has passed, both parties find that they’d still rather be at the mediation table than in court. And sometimes, “walk away” moments actually have the effect of allowing everyone to blow off enough steam that they can return to the table with cooler heads and renewed purpose. Adam — During the “See you in H*ll,” moment, I asked the raging party if it was realistic to believe they would find their adversary in the afterlife and whether or not H*ll had email or a phone directory. After all, it was bound to be populated with millions of dead lawyers. The party shot back a scathing personal insult. Then he laughed. Then he sat back down. Then we continued discussing options for resolution.
Be Ready to Give Up on “Fair” and “Right.” Some parties come to mediation assuming that the outcome will somehow be more “fair” than a decision handed down from the bench. In part, the idea comes from this very natural, and very flawed, belief: “If the other side would just hear me out, they’d realize how right I am, and the matter would be resolved in my favor.” But aside from the obvious (and painful) fact that everyone “knows” they’re right, the mediation process is emphatically not designed to determine who is right and who is wrong. Litigation produces winners and losers. It elevates and protects our notions of process, fairness, and an outcome that is just and lawful. At the end of a trial, a judge or jury decides who is right, what is fair, who is vindicated, and what the outcome should be. Mediation, on the other hand, elevates and protects the integrity of the binding agreement. It does not produce winners, or losers, or truth. Mediation outcomes, even in similar cases, are as varied as the parties themselves. The only thing that’s always true about outcomes of successful mediations is that the parties had control and made choices that worked for them.
Preparing for mediation is crucial. For many parties, mediation represents a path to resolution that is both expedient and final. It’s never an easy path. The good lawyer and the engaged client take mediation seriously and prepare accordingly. They prepare for the discussion, the negotiation and, to the extent possible, for what those conversations bring up logically and emotionally. Prepare to listen. Prepare to disagree. Prepare to get less than you want and maybe to get more in some ways. Prepare for the common traps and obstacles above and maybe, just maybe, no one will have to see each other in H*ll.