GPSolo Magazine - March 2006
Do’s and Don’ts for Mediation Practice
This article contains practical advice for mediators. These Do’s and Don’ts are gleaned from years of mediation experience—and too many mistakes.
In preliminary meetings and telephone conferences. Do explore process options and interests. Often, the parties or counsel say they want arbitration when they mean mediation, or vice versa.
Do meet privately with the parties and counsel representing them before a final mediation session if the case is complex, highly emotional, or has very high stakes. There is no prohibition against calling one or both parties separately to discuss any question or issue.
Do listen and build trust. At some point you may be asking them to go along with your suggestion on a particular point—which is a lot more likely if they have grown to like and trust you.
Don’t accept the attorneys’ or parties’ suggestions regarding the process they prefer and the time it will take before asking basic questions about the status of the dispute, the complexity of the issues, and what is at stake.
Don’t accept the attorneys’ assurances that they will have authority at the mediation session. Probe further, particularly when an insurance company holds the purse strings, to ensure that someone with true authority will be present.
Don’t offer any opinion, skepticism, or favor regarding the claims or defenses in the case.
Don’t suggest to the parties or counsel that your role is merely to provide evaluations that they can accept or reject. Instead, emphasize that the parties are responsible for the outcome of the process.
In joint sessions. Do set the appropriate tone with an opening statement. The degree of formality or informality should vary, depending on the parties and the chemistry of the dispute.
Do remind the parties and counsel of the confidentiality of the mediation process.
Do remind the parties that they own the mediation, and its outcome is theirs to determine. You might point out that although a certain structure has been set out for the process, there are no real rules to which the parties can be bound.
Do ask the parties and counsel to try to listen objectively to the other side’s opening presentation. Suggest that rather than scribbling responses, they try to imagine how jurors listening for the first and only time would view the dispute.
Do explain to the parties that mediators are agents for settlement. If appropriate, explain that a mediator might help them evaluate their options and alternatives. What you bring to the process that no one else has is neutrality. Because you have no stake in either side winning or losing, the parties might want to ask for your evaluation—and then give it some weight. The process may give the parties some perspective so that they can decide whether a proposed settlement makes sense.
By the end of the presentation, do strive to have a real and detailed understanding of all parties’ legal and factual arguments, as well as their interest outside of the litigation.
Do ensure that the issue of damages is addressed. Get the parties’ theories of damages and supporting evidence out on the table.
Do ask questions gracefully, without indicating bias. Ask as if simply trying to understand the situation better. Make some effort to balance the questions directed at each side.
Don’t act like a judge or permit the parties or counsel to treat you like one.
Don’t allow cross-examination or disruptive interruptions or objections.
Don’t lose control of the proceeding unless the parties have “taken over” to engage in real dialogue and problem solving.
In private caucuses. The private caucus is often an important opportunity for parties and counsel to regroup after sitting across the joint session table from the perceived enemy.
Do start the caucus by asking the parties and counsel what they are thinking. What might they want to say that they were not comfortable saying in the joint session?
Do feel free to empathize with each party’s perspective, while maintaining neutrality in the dispute.
Do help the parties see that, whatever the past perceived injury or wrong, they are now faced with making choices going forward. The task is to find a settlement that serves their interests better than the alternatives. Ask each party how he or she believes the other party sees the dispute, and what the other party would consider a fair settlement.
Do try to get a sense of the settlement numbers the parties have in mind. Do a thumbnail risk analysis with the parties and counsel, using their numbers to see what settlement might make sense for them.
Do find the tiebreaker. Suggest a solution and ask both parties to consider it. Explain that you will tell each party if and when the other side agrees to the proposal. Make sure your proposed solution is one that the parties can and should accept.
Do wait to offer your own evaluation until you see no other way to achieve progress toward settlement. Evaluation carries a great risk—primarily, that the party on the negative side of the evaluation will no longer view you as being neutral or as being very smart.
Do make sure, before you evaluate, that the party would like to hear what you think of the case. Be explicit about what relevant experience and expertise you do or do not have. Provide consistent evaluations to both sides in private sessions.
Don’t assume that you will be delivering an evaluation. Make sure that the rules of all ADR providers, court programs, and controlling statutes permit case evaluation.
Don’t ask for anyone’s bottom line, at least not until the end of a long day, and certainly not in joint session or in the first round of caucuses. Most of the time, the parties won’t tell you the truth and, as soon as they announce their bottom—usually a fake one—they may become entrenched.
Don’t deliver an inconsistent evaluation to both sides. It is always tempting to tell both sides they have a terrible case and find an easy settlement in the middle. That may settle one case, but it will quickly ruin your reputation as a mediator. Whether or not the case settles, the mediation has failed if the parties and counsel do not recognize the integrity of the mediator and the process.
Don’t give up on the bidding. Too often, a party will say to the mediator: “This is my final number; don’t come back with anything else,” and the mediator obeys. Never believe a number is final until the parties have walked out the door—threatening to walk out isn’t good enough. You never know that a number will sell unless you try it. A better approach is to communicate the last number and encourage a counter. Help the parties test each other.
Don’t allow the parties to dig in on a position or a number as a matter of ego.
Final agreement. Do write up the deal then and there. It is harder for people to walk away from a deal that exists on a piece of paper. Include a provision stating that the agreement is solid and enforceable, if the parties intend it to be. Obtain signatures of all parties and counsel.
Do tackle ambiguities or inconsistencies in the parties’ understanding of the deal and in the nitty-gritty of getting it done. Work them out then and there—or they will come back to haunt you.
Marjorie Corman Aaron is a professor of practice at the University of Cincinnati College of Law. She can be reached at firstname.lastname@example.org.
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