I am often asked by my litigator friends and colleagues
about how they can make the most of mediation for their clients. With cases increasingly moving towards
pretrial resolution, and methods of alternative dispute resolution increasingly
popular to parties in conflict, developing tools to make yourself a more
successful advocate in mediation should be at the top of every litigators list.
There is one critical mistake that I see advocates in
mediation make, and it is very easily avoided: understand the importance of
working with the mediator. A mediator’s job is to help you settle your
case, come to an agreement, help you find resolution to your conflicts. But the key word there is “help,” the
mediator cannot just settle your case for you.
The most successful advocates in mediation understand this, and they
come prepared to work with the mediator to ensure that the mediator has all the
information she needs to fully understand and explain the party’s position.
It begins with your mediation statement. While it should be persuasive, the purpose of
your statement is not to convince the mediator of the righteousness of your
case. Remember, the mediator is a
neutral, and she is not the ultimate decision maker regarding who is right or
wrong. Instead, a successful mediation
statement should serve to illustrate all the reasons behind your client’s
position. That way, you are providing
the mediator with the information she needs to explain your position to the
other side and to help facilitate the negotiations.
Throughout the mediation, both in the opening joint session
and in separate sessions, be prepared with additional key pieces of information
that help support your client’s bargaining positions. Again, now is not the time for you to
grandstand or to try and convince the mediator that your client is a saint who
is being perpetually wronged by the other side.
Now is the time for you to share the key information supporting your
client’s position throughout the mediation process in order to help the
mediator help explain that position to the other side. Each proposal and counter-proposal you present
to the mediator should be supported by information about your client’s case.
Simply emphasizing your position is never enough; you need
to be able to make sure the mediator understands where you are coming
from. That means you need to have a
clear idea of where your client is coming from.
This preparation is crucial; after all, if you cannot explain your
client’s position convincingly to the mediator, you probably have a tough road
ahead of you with a judge and jury.
There are times when the parties are getting close to a deal,
but still have to make the final leap or two to get there. This is usually later in the day; people are
getting hungry, tired, and increasingly ready to let this conflict go. At this point, one side will usually say
something to me along the lines of, “Can’t you just go over to the other room
and make them agree on X?”
The short answer to that is, “No.” No, not if you want to keep them in the other
room, working towards a resolution. Not
if you want to land this deal.
The full answer is, “No, but I can do something better. Give me your best reasons as to why X is your
ideal solution. Give me something to go
over there with. Let me hit them with
your best shot, and let’s see how far that gets us.” And then watch the magic of conflict
resolution unfold.
Help your mediator help your client. Arm them with your evidence and theories,
along with your questions and objections.
Help the mediator flesh out to the other side why your proposal makes
sense. Then the mediator can most
effectively help you land the deal you need to resolve your client’s issue.
