Litigators often underestimate the power of mediation. Mediation can be incredibly valuable, not only as a tool to settle disputes, but also as a mechanism to assess risk, view evidence from a different perspective, size up your adversary, and get a neutral third party’s insight into the strengths and weaknesses of your case. As a mediator, I frequently see litigators squander the opportunities that mediation presents by making mistakes that can impair chances for settlement and make the mediation process longer and less efficient than it otherwise could be. Learning from these common mistakes can help you better prepare for mediation, avoid derailing settlement, and create the most value for your time.
1. Preparing Insufficiently
Not to sound cliché, but it is true—preparation is the key to success. Prepare for mediation as you would any other hearing. Know your facts inside and out, and be prepared to substantiate your legal and factual positions. The more information you have, the more useful the mediator can be to facilitate a resolution. Many lawyers make the mistake of not having a thorough grasp of the timeline of events, material witnesses, or law relative to an important issue in dispute. They end up spending time during the mediation digging through documents looking for information or making calls to obtain evidence or understand the facts. This is not an efficient use of time or your client’s money. If you confuse the facts or are unable to address your adversary’s arguments, your opponent (and your client) are going to sense weakness. Being well prepared will give your client confidence in your legal capabilities and send a message to your adversary not to underestimate you.
2. Relying on Summaries Rather Than Evidence
Have the key documents to support your case with you. Believe it or not, I have frequently seen lawyers make the mistake of coming to mediation without the “smoking gun” documents, which they left at the office. Having those documents in hand gives the mediator the ability to use them to advance settlement discussions. There is also a psychological impact in having that key piece of evidence physically in front of your opponent during private caucuses with the mediator. Merely relying on summaries, saying you have the records, or describing what the evidence will show is less persuasive. If you have a key piece of evidence or witness testimony that is material to the case, have it with you.
3. Failing to Set Appropriate Client Expectations
Some lawyers make the mistake of coming to mediation without preparing their clients. Talk with your client about the process in advance. Make sure the client knows how long it could take and that there will be down time during the mediation. Too often clients show up completely unprepared to spend more than an hour or two negotiating, or are offended and discouraged by initial offers. Depending on the complexity of the issues, the parties’ respective mindsets, and how the parties differ on a resolution, mediation could take the better part of a day or more. Setting expectations in advance will make for a more content and less anxious client.
It is equally important to set your client’s expectations for success. As always, it is far better to underpromise and overdeliver. Do not make the mistakes of emboldening your client or being overconfident yourself. It is hard to backtrack later if things do not turn out as well as you had hoped. Leave room to negotiate. If you have set expectations low, clients are much more tolerant when confronted with bad facts or impractical offers during mediation.
Consider using the mediator to keep client expectations in check. In a private caucus, a mediator can help your client understand the risks of trying the case, without your client’s perceiving you as not believing in his or her case or not being a fierce enough advocate. Depending on the type of case, mediation can be emotional for clients. Rehashing events, quantifying damages, and finding a way to resolve the conflict can be a painful process. If you have prepared your client to keep an open mind, to listen, and to be receptive to potential weaknesses in his or her case, your client will have a higher level of satisfaction with the mediation process even if the case does not ultimately settle.
4. Talking Too Much
Most litigators like to talk. And some like to hear themselves talk. A common mistake of litigators in mediation is to spend more time talking than listening. There is a lot to be gleaned during mediation if you listen. Hearing the other side’s version of events may reveal facts or legal arguments you had not previously considered. What you thought was a minor piece of evidence or immaterial witnesses may become more critical once you learn about your adversary’s strategic position. Listening—and viewing the case from your adversary’s perspective—could change your strategy or shape your approach to a potential settlement.
5. Ignoring the Knowledge Gap
Remember that your mediator has not been living with the case for months as you have. Laying out the material facts in a presentation or outline will help your mediator. Make sure your presentation is well organized and concise. A power point presentation or outline is especially helpful if the parties have not prepared premediation statements.
6. Forgetting the True Stakeholders
Remember your audience. I have often seen lawyers address only the mediator or their opposing counsel during the mediation. The person you should be addressing is the opposing party or the insurance adjuster. Do not lose sight of who holds the purse strings or who is the ultimate decision maker in the room. You are not there to convince the mediator or opposing counsel of anything. Showing respect and finding a way to satisfy the needs of the decision maker will go a long way toward resolving the dispute.
7. Being Too Adversarial
Remember: mediation is not a trial. While you want to be as prepared as you would be for a hearing, mediation is not a forum for posturing, aggressive advocacy, or hostility. I have seen young litigators make the mistake of coming to mediation with guns blazing—making opening statements that are emotional, antagonistic, and divisive. Rarely does this have the effect of convincing the other side that they are wrong and your side is right. Instead, it only serves to drive the parties further apart and to make settlement even less likely. Mediation is not the place to prove your case or convince anyone of anything. When you make statements in a joint caucus, be mindful of your tone and choice of words. What you say and how you say it can impact how the opposing party perceives you and your client, alter your opponent’s willingness to make concessions throughout the mediation process, and influence your own client’s expectations.
8. Being Too Personally Invested
Litigators do a disservice to their clients when they are unable to distance themselves from the case emotionally, and thus incapable of assisting their clients in making good decisions. While client advocacy is important, remember that this is not your case and not your problem. It is one thing to be sensitive to your client’s situation, but some lawyers can go too far and contribute to a client’s fragile state. Do not let your personal opinions sway your clients’ decisions or impair their ability to consider settlement options. Keep a clear head so you can best advise clients in a manner consistent with their own best interests.
Avoiding these common mistakes can improve your chances of a successful mediation. And regardless of whether the case settles, the more prepared you are and the more efficient the process is, the happier your client will be in the long run.
Keywords: litigation, woman advocate, mediation, settlement, negotiation, common mistakes