I’m often asked how to make mediation successful. Although every case has its own unique twists and turns, here are my thoughts as to the top 3 ways to maximize the potential for resolution:
1) Talk to me. Some of the most important work happens well before the day of mediation, and much of that work involves phone or Zoom calls with the lawyers, and sometimes with the parties as well. Among other things, during these calls I ask the lawyers to tell me a bit about the case; whether there is any further information they need in order for their client to make final settlement decisions; whether there are any other parties who should be involved in the process; whether all decision-makers will attend the mediation; whether there are any insurance issues that need to be resolved; whether there have been any prior settlement discussions; whether there are any personality issues I need to be aware of; and whether there are any impediments to resolution that need to be addressed. It’s important for you to carve some time out of your busy schedules to talk with me before the day of mediation.
2) Prepare. Like a solid foundation is the key to a well-built house, preparation is the key to a successful mediation – and preparation takes many forms. It includes a thorough understanding (by both you and your client) of the good and the bad of your case (both factually and legally). It includes an understanding of what I sometimes what I refer to as “the ghost of litigation future” might look like if the dispute doesn’t resolve at mediation. It includes the preparation of a well-thought-out Mediation Brief (which I always request be exchanged 1 week before mediation) that tells not only me, but more importantly the decision-maker on the other side, what your case is about and why it would be a good idea for them to settle it. And it includes pre-mediation development of a settlement strategy with your client that sets “best-case” and “worst-case” goals for a negotiated outcome. That strategy should also include the development of a list of what it is that your client wants to achieve through settlement (e.g., put an end to the dispute; repair the relationship with the person on the other side; maximize (or minimize) the amount of money that changes hands), listed in order of importance.
3) Be flexible. Finally, no matter how well prepared you and your client are, it’s important for you and your client to remain open-minded and flexible throughout the mediation process. Sometimes new information is presented. Sometimes the reality of the process causes clients to re-think the order of priorities they’ve set for what they want to achieve through settlement – and sometimes that can change the “top dollar” or “bottom line” that the client came into the process with. Mediation, like litigation in general, is unpredictable, and for it to be successful, the parties must come into the process with an open mind. I truly believe that there is a “magic” to the process that can result in settlement in even those cases where both sides come into it believing that the case can’t be settled – as long as both sides are willing to trust the process, and to remain open to possibilities they might not have previously considered as acceptable.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you.