Preparation is key. Although the mediator is neutral and will not be deciding the case, having a strong handle on the facts and knowledge of the applicable law is just as important during your mediation as it is during a day in court. Decide beforehand how you will respond to inquiries during the mediation. Will you speak first and defer to your client for additional commentary? Would you like your client to confer with you before actively participating, and if so, how? Prepare your client for some of the arguments and tactics that the other side may use. And be prepared to compromise.
Professionalism is imperative. How you and your client conduct yourselves during the meeting greatly affects the other party’s perception of you (and often times how quickly they settle). A mediation setting is more personal and informal than a courtroom but can also be highly emotional. Common courtesy and respect will help you to successfully navigate this meeting and reach a resolution. There are no benefits to rudeness or dishonesty.
Patience is crucial. Be sure to set aside enough time for the process to work. Confirm that you have arranged a time and date for the mediation with nothing else on the calendar. You want both your client and the other party to know that you are focused entirely on the matter at hand. If it seems that an impasse has been reached, ask for a brief recess. And always express your interest in reaching a settlement.
Brittney D. Alls is district ombudsman for Richland County School District One in Columbia, South Carolina.
Every successful mediation or settlement discussion requires three key components:
1. A sound strategy: Enter a mediation or settlement discussion with a well-prepared strategy. Develop your Best Alternative To a Negotiated Agreement, or BATNA. The better your BATNA, the greater your power. Also, make sure to consider opposing counsel’s BATNA while negotiating. Keeping the parties’ BATNAs in mind will allow you and your client to reach the best possible solution.
2. An open mind: Be willing to compromise. Focus on what outcome would serve your client’s interests. Then, focus on opposing counsel’s interests to reach common ground.
3. A balance of preparedness and patience: Prepare as you would for trial. Your job is to persuade the opposing party to reach a settlement that is better for your client than its BATNA. Feel confident in your position and advocate with zeal. That said, be patient! Never rush into a settlement.
Sara Qureshi is a J.D. candidate at Barry University School of Law in Orlando, Florida, with an expected graduation date of May 2017.
As a consultant and trainer on dispute resolution techniques, I offer five tips for new lawyers as they prepare for and participate in their first mediations:
1. Read articles about effective mediation advocacy skills. You will note these skills are different from effective arbitration or trial skills. Incorporate these differences into your approach.
2. Be prepared to discuss the strengths and weaknesses of your case with respect to liability and damages. Where possible, bring documents and data that support your position.
3. Know your mediator. Mediators have different backgrounds and utilize varying mediation styles. Knowing how your mediator will conduct the mediation should inform you and your client how to best prepare and about what to expect.
4. Think outside of the box. It is important to understand your client’s underlying interests and goals. A negotiated agreement can involve numerous creative solutions beyond the traditional monetary settlement.
5. Do not give up. Commit the time necessary to prepare for, and participate in, the mediation. Mediation can be a slow-moving process, and not all cases settle in the time allotted. If the parties remain engaged in trying to reach resolution, most cases will settle.
Elizabeth J. Shampnoi is a director in the Dispute Advisory & Forensic Services Group of Stout Risius Ross in New York, NY.