Mediation May Hinge on a Clear Understanding of What’s on the Table

– and a Personal Story or Two

Successful mediation isn’t always rooted in the confidential mediation statement, or the back and forth during opening statements, or the many routine processes of a typical mediation.

Sometimes success comes down to clear communication at the onset and even sharing a personal story or two.

In a recent mediation that got off to a slow start, I asked each party to tell me a little about themselves. This was done in separate, private conversations, in which I learned that the opposing parties had something in common: when both were younger, they started their own businesses.

This storytelling was helpful to me and, I believe, to them. I understood why this dispute was so personal to each of them. They enjoyed talking about themselves, became more comfortable with me as the mediator, and got to tell me their side of the story. The chance to talk also gave them a role outside of their attorneys, which often isn’t provided in mediation.

That doesn’t mean the mediation proceeded without a hitch. After a few hours, it became obvious there was a significant communication gap.  Neither side was clear about the details of the offer and counteroffer. This was a mediation that very much felt like one step forward, two steps backward.

That is why it is critical – prior to the mediation – for the mediator to make certain that the most recent offer is clear and is understood, and that the counteroffer is also clear and understood. What was the demand? What was the response? Where do things stand?

Because of this miscommunication, we had to start over – wasting a lot of time and creating some animosity between the sides. The mediation got bogged down and legal expenses for both parties went up.

I finally got the mediation back on track by backing up, having the plaintiff give the offer only to me, then having me communicate the offer to the defendant. This new process created some additional animus, but I was able to talk the defendant off the ledge, get the parties to produce a new offer and counteroffer, and voila! The case was settled.

The bottom line is, don’t assume that all the details are understood, especially in more complex business cases where the negotiations are pinned on structuring the settlement, how it was to be paid and over what term, and how the funding was secured. Also, use those personal stories to your advantage as the mediator.

Charles Schneider

Charles Schneider, retired trial judge of 20+ years, describes the best mediation practices he's observed over the years. Charles Schneider, who is now of counsel for the Columbus, Ohio law firm Isaac Wiles, is immediate past president of the Columbus Bar Association and served as an Administrative Judge in Franklin…MORE