Tips for a Successful Mediation
By: Andrew Y. Winston
Florida Supreme Court Certified Civil Circuit Mediator
When many of us attended law school, it was with the intention of becoming litigators and trial lawyers. Being in the courtroom, questioning witnesses, arguing to the fact-finder(s), objecting…all these things have long been romanticized in literature and popular culture. However, what all the books, television shows and films about lawyers don’t really convey is the risk inherent in our jury trial system. The finest trial lawyers, with the best clients and cases, are nonetheless at the mercy of those six people. How, then, can a lawyer maximize the results for her clients, while simultaneously maintaining control over the outcome? One answer to this question is to participate meaningfully in mediation. Here are some tips for a successful mediation:
This seems obvious, but all too often litigators are so busy with hearings, depositions, trials and all the other things that eat up the already limited hours in the day and find themselves shooting from the hip. However, attending mediation without proper preparation is a waste of everyone’s time and money. The lawyers should know their case inside and out and be prepared to discuss the facts and legal issues with authority and confidence. Few things will cause a mediation to either impasse prematurely or go sideways faster than parties and lawyers who are unprepared.
2. Educate your client
Mediation may be “same old, same old” to you, but unless your client is sophisticated (or litigious), the process is likely to be unfamiliar and, potentially, intimidating. Have a meeting with your client. Explain the mediation process, what they can expect and what is expected of them. This meeting is a perfect time to address expectations and economics. An informed and educated client will be better able to listen and digest the flood of information coming at them and participate effectively in the mediation process.
3. Make sure the decision-makers are engaged
Mediation will never be fruitful if the ultimate decision-makers are not participating. This doesn’t just mean the parties should be present, it means they should be engaged, invested and involved in the process. It isn’t absolutely necessary that the “top person” be there, but a “warm body” with no authority and no connection to the dispute is less than worthless at mediation. When an insurance company or corporation is a party, opposing counsel should insist that a representative with full settlement authority be present at the mediation.
Litigation is an inherently adversarial process. Mediation should not be an extension of this. Treat opposing parties and their counsel with respect and courtesy. Above all, respect the process—all mediations are not the same and your mediator likely has different ways of approaching different situations and parties.
5. Be a willing participant in the process
Don’t just “attend” mediation. Be a willing and active participant. It is highly unlikely you or your client will agree with much of anything the opposing side presents at mediation. However, rather than tuning-out opposing counsel during his or her presentation, listen carefully. When you’re in caucus, converse with your mediator, ask questions and consider carefully what messages are being delivered. A great deal of valuable information can be gleaned from participating in the mediation process and, even if your case doesn’t settle, you can often leave an impasse situation with more insight into your case than you started with.
6. Be patient
Mediations can take time. Your mediator is neutral—his or her sole purpose for being there is to help the parties resolve their dispute and it can take some time for the mediator to obtain a sufficient grasp of the facts and issues to effectively assist the parties. The desire “get down to brass tacks” is understandable, but a rushed mediation is rarely successful. It takes time to address these issues, so you should plan to spend enough time to allow the mediator and parties to consider the issues in dispute and meaningfully explore an amicable resolution.
7. Keep a level, open mind
The parties would not be attending mediation if they were in agreement. Disagreement is fundamental in the litigation process, and each party typically believe they are “right.” Some participants may have unrealistic expectations, or a fundamental dislike for the other side. Anger and frustration are common during mediation, and it is critical to keep a level, open mind and work through those emotions to get to the intended result—a deal that all parties are satisfied with. This doesn’t mean all parties should expect to leave mediation happy, but negotiations conducted in anger seldom result in a settlement.