Here are some suggestions when you to start the mediation process. None of these ideas is particularly profound, but they are thoughts gleaned from ten years experience conducting hundreds of mediations. They are surprisingly simple, but apply to all of the cases I have seen.
1. Don’t Go to the Mediation Until Your Client and Your Case Are Ready
Common sense, and now case law, prohibits anyone from being forced to mediate. Don’t let the Court or the other side push you into one prematurely. Do necessary discovery, spend time with your client, so that you can properly evaluate the true strengths and weaknesses of your case and have your client psychologically ready to mediate.
2. Research Your Mediator Before You Select One
Go on the Mediator’s website, if he/she has one. Check on experience and training. Most of all, ask the Mediator for the names of three or four attorneys he/she last worked with. Call them and get their impressions. (If a Mediator is reluctant, choose someone else.)
3. Ask the Mediator for a Private Pre–Mediation Conference
I have done this for years and it has been extremely helpful. Make sure it is confidential. You can release the Mediator later at the mediation, if necessary. Describe the status of case and explain the strengths and weaknesses and any client control issues. If you have ideas that are creative in settling the matter, share them.
4. Don’t Select Mediators Just Because They Belong to A Large Group or Because They May Be Legal Experts on the Subject
High profile Mediators sometimes don’t have the time to devote fully to the pre-Mediation process. More importantly, the attorneys always know more about special legal issues, than any Mediators coming in cold, no matter their legal specialties. Educate the Mediator on important legal issues, highlighting them in a short, but understandable brief, and then call them and ask if they need additional help on a hard issue. Believe me, they will be grateful.
5. Talk to Your Client Before-hand and Explain the Process
If you have an apprehensive client or a strong-willed one, you might even let the Mediator explain things, introduce himself/herself, and smooth the initial concerns. Call the Mediator and ask.
6. During the Mediation, Make Your Presentations Positive Not Adversarial
Don’t demonize the other side or parties. You are not trying to win a case in front of a judge, and the Mediator is not going to decide who wins or loses. A respectful tone diffuses the tension, makes the other side do the same thing, and makes all more comfortable and willing to resolve the case.
7. Let Your Client Speak
This is by far the hardest thing for counsel to do, but the most important. Litigators are hard-wired to win and are scared that their clients will say something that weakens their case. This almost never happens, but if it does, so what? There is nothing that can ever be used later and more importantly, clients often say things that are moving, profound, insightful and help rather than hinder the process. They often suggest solutions counsel have not thought of and the Mediator can also learn much more about their real agendas.
8. Be Honest and Tell Your Client to be Honest
Not “cash register honesty”, but honest about what folks really want to achieve from the Mediation and what their real feelings are.
9. Practical Procedural Tip
If you have important language you want to be included in the final settlement agreement, factual, legal or financial, bring along a draft agreement ahead of time. The Mediators will love you for it and it will expedite the process.
10. Don’t Give Up
Stay as long as it takes, and keep working. The Mediation will often be the last best chance of resolving the case, since a failure often hardens positions and feelings.
Finally, you will note that these tips are heavy on the front end and light on the actual conduct of the Mediation session. It has been my experience that when counsel implements these steps by way of preparation, the vast majority of Mediations are successful. Yours will be too.
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