October 23, 2018 Practice Points

Three Reasons Why You Should Call Your Mediator

Why this is an emerging best practice

by Jeff Kichaven

Lawyers, are you in the habit of calling your mediator between the time you send in your mediation brief and the date of the mediation? It’s an emerging best practice, and it’s a good idea. Here’s why:

First, you want to make sure the mediator understands everything and you also want to answer any questions the mediator may have.

Second, you want to make sure you and the mediator are on the same wavelength about the process. For example, should there or should there not be an opening joint session? And, if there is, what should the agenda be and what will be your signal to the mediator that you think it has gone on long enough?

Third and most important, you want to talk to the mediator about the human elements. Mediation is often a mix of law and psychology. You are probably quite good at writing briefs about law. You may not have as much experience writing about the psychological dimensions of a conflict and its negotiation. A phone call is the best way to inform the mediator in advance about the personalities of the participants, who is and is not getting along with whom, and who may need the mediator’s help in getting unrealistic expectations down to planet Earth. Often, dealing with unrealistic expectations is the most important thing a mediator does. It’s part of your job to make sure the mediator is as well-prepared as possible to do it.

So, if your mediator hasn’t called you as the mediation day approaches, pick up your phone and call the mediator. You’ll be glad you did. Good mediators will welcome the input.

Jeff Kichaven  is the founder of Jeff Kichaven Commercial Mediation


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).