Making the Most of Mediation

Mediation has become increasingly common as a means to resolve disputes, both before and after the formal filing of litigation. With its flexibility and opportunity for creative resolution, mediation can be effective in resolving many types of disputes.

Why are some participants successful in the use of the mediation process, while others are not? As a mediator, I have observed that successful mediations share many similar characteristics.

The following are suggestions to increase your success in mediations, and to help in making the most of the mediation process.

Choose the Right Mediator

An effective mediator is a neutral, unbiased third party who can encourage and prompt the parties to work together toward resolving a dispute. A mediator is not a “decision maker” or “decider,” traits you would find in an arbitrator or judge.

Ideally, you want a mediator who can help you present your case most effectively to the other parties.

The Value of Preparation

Making the most of mediation requires thorough preparation, well before the mediation itself.

An Early Honest Evaluation of Your Party’s Case

Don’t wait until the day of the mediation to evaluate your case. Well before your participation in mediation, you should have completed a thorough and objective factual and legal analysis of both your case and the positions of the other parties. In addition, you should also have performed an honest analysis of the range of potential damages, and the likelihood of recovery.

Educate and Prepare Your Party for the Mediation Process

All too often, parties fail to resolve their dispute at the mediation because they are not adequately prepared and/or are left ignorant of the proceedings. As early as possible before the day of the mediation, you should inform your party of the factual, legal and damages analyses. They should be informed regarding the benefits of mediation, and the risks and costs of post mediation activities. You should fully discuss with them the range of settlement possibilities, and the party’s realistic expectations.

Explain Your Party’s Participation

Most mediations begin with a joint session, attended by all parties. Let your party know this ahead of time, and make any necessary arrangements should this be a problem – emotionally or physically -- for your party. Review with your client what will be expected at the joint session, especially whatever they may say or do at this group meeting. Explain the confidentiality of the entire proceeding, especially the private sessions with the mediator.

Educate and Prepare the Other Parties

Mediations work best when the other parties are persuaded of your client’s position. To persuade, you first need to educate the other parties.
Ideally, a mediation will be at the end, and not the beginning, of efforts to resolve your matter. As with your client, regular contact with the other party or his/her counsel will help you make the most of the mediation process.

Provide Information as Early and Fully as Possible

If you really want to resolve your case at the mediation, and you have information which is helpful and/or persuasive for your case, provide it as soon as possible. Don’t wait or procrastinate in providing any useful information. All too often, mediations are not successful because the parties have either withheld supportive information or provided only some of it on the day of the mediation itself. (For example, if your client has a large consequential damages claim, fully documented supporting information should be provided as early as possible.)

Exchange Briefs with Opposing Parties as Early as Possible

Again, education of the other party is a necessary step before their persuasion. In my mediations, I strongly encourage all the parties to exchange briefs at least five days before the mediation date.

The more notice you give the opposing party, the better your chance of success at the mediation. An advance exchange of briefs, along with an itemization of damages, is especially important for plaintiff’s counsel in any type of civil action. If your opposing party is an insurance company or large corporation, they may need to meet to ”roundtable” your demand to prepare their response. Generally, the larger your case, the more time you should give to the other party’s decision makers.

The opposing party, like your client, needs to be educated well before the mediation so that he is fully prepared to make informed decisions before and during the mediation itself.

Effective Use of the Joint Session

Your presentation in the initial joint meeting is just as crucial as an effective opening statement in a jury trial; at both, impressions are made and opinions formed or hardened. Use the joint meeting, not the sole caucus meetings with the mediator, to effectively present your case and hopefully persuade the other party.

Whether you are the plaintiff or defendant, the joint meeting is your golden opportunity to marshall available materials – photographs, documents, testimony -- to persuade the other party. Avoid antagonistic or strongly adversarial statements. Your client should be prepared and ready to supplement, annotate or embellish your presentation during the joint session.

A client’s statements can be very powerful in this setting; I have been in joint mediation sessions in commercial mediations where the comments of one party have visibly moved the other party to alter a position.

Remain Flexible and Open-Minded

Your client, like yourself, needs to be flexible, spontaneous and open minded during the mediation session. This is especially important if you encounter newly disclosed information.
At the mediation, you and your party may learn of information which will force you to re-evaluate your position(s) regarding any number of issues in the case. To remain effective at the mediation, you need to make sure your party remains flexible, open and willing to consider the newly acquired information. Obviously, the better informed the client has been before the mediation, the more likely he/she will be able to process and intelligently respond to this new information.

Be Creative in Methods to Resolve the Dispute

One of the great advantages of mediation is the ability of the participants to craft their own terms of the settlement. The seeming variety of the terms can be surprising, limited only by the imagination and creativity of the parties. In many instances, the resolution of a dispute may hinge on more than the transfer of money from one party to another.

Mediation is a Process

Remember, mediation is a process which has its own individual life for each case. Some matters may resolve in one or two sessions, while those matters which involve complex issues and/or multiple parties may require a number of sessions scattered over months. At any mediation session, progress can be made as issues may be simplified, reduced, or dismissed. While the nature of your case may prevent its resolution at the first session, the advance preparation and work at a mediation will help to shape and expedite its eventual resolution.

Bill Kamenjarin has a mediation and law practice. He is the chair of the Alternative Dispute Resolution Section of the Bar and can be reached at 760/729-0107 or wck@wcklegal.com.

(Reprinted from North County Lawyer Magazine)