After mediating hundreds of cases in all different fields and parts of the country over 18 years, I’ve reached a few conclusions about mediation that might be helpful to trial lawyers and that I’ve boiled down to seven deadly sins. Just as avoiding religious sins may not guarantee a place in heaven, avoiding my mediation sins can’t guarantee a favorable settlement. But they might at least lower the odds of self-inflicted wounds.Before laying out the sins, two caveats: First, let me say that my style of mediation is rather intensely proactive, and this article reflects the views of one who believes counsel, parties, and mediators must actively persuade each other in order to achieve their desired goals. Mediation theory is replete with references to “facilitation” and “party empowerment.” While I don’t diminish these characterizations, I truly believe participants in mediation are more concerned with results than process, and the road map that follows will lead you to that destination.
Second, I should also say that much, though not all, of my advice is specific to mediation with private mediators chosen by the parties. This issue of Litigation features an article by a magistrate judge about how to handle settlement conferences with the court. Unlike court-ordered settlement conferences with judges, mediation with private mediators presents greater opportunities for influence by the parties. Parties can select the mediator with the best style and subject matter background possible for their specific case. As lawyers with mediation practices to promote, private mediators often go the extra mile to bring about a settlement, while judges necessarily have less time and much more on their plates. Lawyers won’t refer or rehire mediators who aren’t all in, whereas judges have the ultimate job security. In private mediation, parties can be less guarded and don’t have to worry about things they say or do somehow bleeding into later rulings from the court, as hard as judges may consciously try to prevent that from happening. Clients are often present and more involved in mediation than in court-ordered settlement conferences. All of these differences color somewhat how lawyers should approach the two different processes.
Those disclaimers out of the way, the seven deadly sins: