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Wednesday, June, 19, 2013

By Robert E. L. Wright,, Grand Rapids, Michigan

After observing parties succeed and fail in hundreds of mediations, here are my top ten tips for a successful mediation.

1. Select the appropriate mediator.
Mediators vary in approach and style. Some use the facilitative model while others are more evaluative. One mediator may prefer to keep the parties in joint session as long as possible and may never convene a private meeting, while others use the private meeting early on. The private meeting is a useful tool, especially when a monetary settlement is contemplated. It allows venting, sharing of sensitive information, and a chance to formulate your “pitch” before delivering it to the other side. If the message is delivered in a respectful and well-ordered manner, it will increase the likelihood it will be fully considered. CAUTION:  What you reveal to the mediator in these private one-on-one meetings is typically confidential and not conveyed to the other side without your express consent. The mediator should make this clear before going into a private meeting. If you have any doubt about this (or any other aspect of the process), seek clarification from the mediator. Beware of the mediation/arbitration option!

2. Prepare.
Parties do better when they are prepared. In essence, mediation is a form of facilitated negotiation. The more time you take to do your homework, the better. Review the file: is everything in order? Do you have anything left to do? Plaintiffs:  Can you blackboard your damages or support them with jury verdict research? Have you prepared your client for a lowball opening offer? Defendants:  What can you say to encourage the Plaintiff to settle? Do you have sufficient authority to respond to new information you learn at mediation? Both:  Do you have the right people coming to the table? Have you discussed risks and weaknesses of your case with your client? Are they emotionally prepared to be in the same room with the other person?

3. Create a concise, truthful and compelling mediation summary.
A mediation summary is different from a trial or case evaluation brief. Instead of trying to persuade a neutral, you must try to persuade the other side. If you were on the other side, what would you want to hear to encourage you to settle? Don’t be abusive: the old saying about flies and honey proves true throughout mediation. Keep exhibits to a minimum. If you are truthful in your representations, you don’t need exhibits to prove it. If you exaggerate or shade the truth, you lose credibility and trust with the other side (and the mediator). Building trust is an important tool in persuading the other side. Unless you have a compelling reason not to disclose information, do so.

4. Formulate a reasonable opening offer. Studies show the side which makes a reasonable opening offer “anchors” settlement negotiations, i.e., the final settlement amount is closer to their number. Use a “decision tree” to calculate your best and worst case scenarios and the dollar amounts for both. Map out your monetary moves in advance, but be prepared to reward movement from the other side with a “double move” and always be ready to revise your “bottom line” if you receive new information.

5. Participants:
Carefully consider who to bring to mediation:

  • Will they help you reach settlement? Could they be so defensive as to be unable to admit their own mistakes or apologize for the mistakes of others? Could coaching make them helpful?
  • Do they have complete settlement authority? If not, can someone with full authority attend or can you guarantee ready access to authority? Many times cases don’t settle without someone in authority listening to every aspect of the mediation.
  • Could a subject matter expert provide information on a technical or complicated area in dispute, such as construction, valuation or psychological issues to help resolve them or provide a range of options? If so, discuss their attendance with your mediator.

6. Deal with Emotions Before the Mediation:
Emotions are often the fuel which ignites a conflict.

  • Be sure your representatives (and you) have dealt with their emotions before mediation.
  • Identify hot buttons; decide how to manage them in advance. If your opponent has called your client a liar, cheat or fraud in pleadings, they will likely do so in the mediation. When people feel attacked, they may build walls and lob grenades from behind them. Be prepared to help them guard against it. Ask them how they can let it go. Focus on solutions, not blame or retaliation. “She who keeps her temper, wins.”
  • Anticipate what will make the other party react defensively and how you will deal with their hot buttons and defensive reactions. Figure out what you can do to avoid engaging in a war of words.

7. Identify Key Interests:
Mediation works best when parties reveal what really matters to them. Many times we think a dispute is purely about money. However, try to identify interests, both your side’s and theirs, which lie beneath the money. Rate them on a scale of importance from 0 to 5. (I have a list of 25 universal needs and interests I use to do so.)

8. Listen actively.
A good listener seeks to understand the other side, not just formulate a retort. Repeat some key phrases to let the other side know you hear them. Empathize when possible:  “I can see you are very upset over the accident and we are sorry you have had to endure the pain. We are prepared to put some significant dollars on the table today to help you get past it.” Ask for clarification, but not interrogation. Ask open-ended questions.

9. Empathize
: Let the other side know you hear them by acknowledging their situation. For example, “We are all sorry for your loss. We want to reach a settlement today to help you get on with your life.” Notice there are no admissions, just an expression of sympathy and a desire to settle. Next, make the legal or factual issues the “bad guy.” We want to settle, but here’s the problem keeping us from giving you what you want: ….” This invites the party to help solve the problem.

10. Focus on the Future vs. the Past
: You are trying to create an arrangement for your client’s future. So, it makes sense to focus on the future rather than the past which caused the problems. The past needs to be addressed, but then it needs to be left in the past. For example, “I acknowledge mistakes were made and I am committed to coming up with a solution.” This type of statement acknowledges the past and then shifts to the present and future -- the only two places where change is possible.