A successful mediation is one in which the parties reach an agreed resolution. The agreed resolution will not be the same as if all issues were tried and decided in your client’s favor.
I began mediating as a volunteer in small claims court. Lawyers were not involved. When I first mediated with lawyers, I wondered how any case with more than one lawyer could ever be resolved in mediation. I now appreciate how much help lawyers can provide in reaching a resolution.
These thoughts are intended for lawyers who want to improve their clients’ prospects for an efficient and economic resolution in mediation.
I. Don’t mediate until your client is seriously interested in a fair resolution.
A fair resolution should take into account the uncertainties of litigation. In the rare case in which all fact issues will certainly be resolved in your favor, don’t mediate. In the other 100% of your cases, litigation risk analysis is worth doing and should be shared with your client.
I once failed to resolve a dispute involving multiple defendants and a colorable claim well into six figures. The defendants’ joint response to a defensible demand was an offer of less than the cost of assembling defendants’ lawyers for the short mediation. The rationale for the meager offer was that defendants’ version of all disputed fact issues was correct. The mediation terminated abruptly. Whether or not the defendants’ perception was correct, the mediation was a pathetic waste of time, energy, and expense.
II. Share the strength of your client’s position in writing with the other side.
It is usually counterproductive to bring the parties together so opposing counsel can argue their positions. It is, however, worthwhile to communicate the strength of your client’s position to the other side. A written presentation shared with the other side is useful in a way that a joint session argument is not. Face to face confrontation is emotionally stressful and not conducive to resolution. The other side still needs to know the strength of your position. Do it in writing. Do not just inform the mediator. You may want to communicate some things to the mediator in a confidential submission. The strength of your position should not be confidential.
III. Before the mediation, give your client an empathetic ear and a dose of reality.
An essential part of mediation is giving the parties an opportunity to vent. This has been so nearly forever. In ancient Egypt, The Vizier Ptahhotep observed in a slightly different context:
“If you are a leader, be calm while you hear petitioner’s speech! Do not prevent him from purging his body of what he planned to tell you! A wronged man loves to pour his heart out more than achieving what he came for. About someone who prevents petitions, they say, ‘So why does he thwart it?’ Everything for which a man petitioned may not come about, but a good hearing is what soothes the heart.”
Most mediators are sensitive to the need for an empathetic ear. But if you, the lawyer, provide that ear beforehand, it will streamline the mediation itself. In addition to and after listening empathetically, it is important to give your client a strong dose of reality concerning the prospects for resolution.
IV. Before the mediation, explore with your client how to seek a win/win resolution.
Interest-based negotiation increases the likelihood of a win/win resolution. Explore with your client resolutions that will add value for the other side without significant cost to your side. Win/win possibilities tend to be dispute specific. Here is an example that may be more generally applicable: Your business client may be willing to fund all the costs of mediation in order to derive the benefits of it. If you are mediating with a customer, the willingness to absorb the costs may be the difference between reaching resolution and not. A resolution may keep the customer. That is worth doing.
V. Help the mediator.
When I mediate, I want to review the pleadings and documents necessary to understand the dispute. Beyond that, I am more interested in how the case might be resolved than in how meritorious your side of the dispute is. Share with the mediator what you can and cannot do and why. That will help the mediator work efficiently with the other side. The mediator wants to help the parties resolve the dispute. That will be good for everyone.
If you review, think about and implement these tips, it will improve your chances of reaching a satisfactory resolution in your next mediation.
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