Getting the Most out of Mediation: Understanding the Process

As a full time neutral, I often get asked by other attorneys about how they can best take advantage of the mediation process.  Given that a Department of Justice survey found that an overwhelming 97% of civil cases settle before going to trial, and many of those cases settle with the aid of a mediator, knowing how to make the best use of mediation is an important tool for all litigators to develop.

One of the most important things that ensure a successful mediation is understanding the process.  I'll illustrate this with a cautionary tale.  I recently conducted a mediation of an employment discrimination complaint.  Things initially flowed according to the traditional process.  After a brief opening session introducing everyone and giving an overview of the process, I met with both parties in separate caucus to flesh out their positions and better understand what we could be working towards in terms of resolution.  Upon returning to the first party, the attorney for that side began by saying, "Look, I don't even understand the point of mediation.  I just don't think this is going to work.  Here's my client's number, and there is nothing you can say to make him change his mind."

Telling your mediator that you do not understand the point of mediation, and that you believe it never works, is a surefire way to derail your mediation.  And, of course, that is what happened.

The mistake this attorney made was coming in to a mediation unprepared; specifically, he came in without any understanding of the mediation process.  Mediation is by design a flexible process that allows the parties to explore what they need and what they can offer in order to move towards resolution.  One reason for the appeal of this flexible, informal process is that it allows for conflicts to be addressed and resolved more efficiently and quickly than through a traditional administration or judicial proceeding.

An integral part of this process, then, is in the exchange from information between the parties.  The mediator is not a judge; as a neutral, I am not there to decide who has the better end of the case.  Instead, the mediator is a conduit between the parties.  As with the mediation I just described, if one party does not understand this, and decides that it neither wants to share nor receive any information or even discuss compromise, this is a party that is unprepared to take advantage of the mediation process.  And this is an attorney who just wasted everyone's time, and his client's money.

Before heading in to a mediation, do your homework to learn what you can about your particular mediator and her process.  There are many styles of mediation - facilitative, evaluative, and transformative are three common types - and each mediator has different process preferences.  Some keep the parties apart the entire time, engaging in shuttle diplomacy back and forth, while other mediators keep everyone in the same room in order to facilitate a dialogue, and most mediations involve a little of both options.  Knowing what style of mediation and what process your mediator will use will better allow you to prepare your presentation as well as preparing your client to know what to expect.  And as you develop your advocacy skills in mediation, you will better know what style of mediation works for your litigation style and your particular case, empowering you to have the information you need to work more effectively with your mediator to bring your conflict to resolution.