August 27, 2013

Winning at Mediation: The Strategies for Effective Dispute Resolution

Sharrolyn Miles

I. What is Mediation?

Mediation can be defined as a process whereby a neutral facilitator aids parties in reaching a mutually agreeable resolution of their dispute.  It is a process whereby the parties – rather than going back and forth by telephone, letters, or in front of a judge – set aside one or more days to try to hammer out their differences and reach a compromise so that both sides are happy.  For a mediation to be successful, both sides have to be willing to actively and earnestly participate in the process.  

II. How does the Process Work?

The mediation process usually starts with all of the parties coming together before the mediator to lay out their positions.  While similar to opening arguments in court, the process is much less formal with few, if any, procedural rules.  It is also helpful to present a position paper to the mediator at least a week or two in advance of the mediation, in order to allow the mediator sufficient time to understand the issues that will be involved prior to the mediation.  The position paper will outline the facts, issues, and procedural background of the case.  It will also outline the client’s position, arguments, and evidence.  Generally, the position paper is confidential and the mediator does not share the document with the opposing party. 

After the initial meeting, the parties will usually split off into separate rooms—sometimes called “caucus rooms”- where the mediator will meet with each side and discuss their concerns privately.  The mediator will find out what each side is interested in and get a good understanding of the basis for their position.  Each side will also have the opportunity to discuss the evidence with the mediator and the opportunity to share any key documents or other evidence.  The mediator will generally spend the rest of the time going back and forth between each side laying out their positions and their counter-demands with the goal of reaching a settlement that will be acceptable to both sides.

Once a settlement has been reached, the parties may choose to come back together for final comments by the parties or the mediator, or to discuss minor provisions of the settlement agreement that will be drafted after the mediation is complete. 

III. When should mediation be considered?

There are a number of reasons why mediation might be appropriate.  Sometimes the settlement process has come to a halt.  Other times, a court has ordered mediation.  As a practical matter, a compelling reason to attempt mediation is to avoid trial where the outcome is less predictable and usually more expensive. 

An example of a situation where mediation can be beneficial is where there is a defendant who admits to liability in a personal injury case, however, the parties are far apart of the amount of actual damages.  In order to cut down on litigation costs and speed up the litigation process, the parties might decide to participate in mediation in hopes of reaching a compromise regarding damages.  Or the attorney on one side may be having a hard time getting the client to see the weaknesses in the case and understanding why settling would be more beneficial to them than going to trial.  Mediation will give the client the opportunity to be presented with the other side’s position and the mediator may be able to help the client understand the weaknesses in their case.  

IV. Choosing the Right Mediator

Choosing the right mediator will have a tremendous impact on the success of the mediation.  It will be important to choose a mediator that has the experience, skills, and patience to handle a particular type of case.  A good way to find out which mediator is best for a situation is by asking other attorneys about their experiences before particular mediators.  What is the mediator’s legal background and experience?  How long has the mediator been in practice?  What methodology does the mediator usually use and what is his success rate?  What kind of personality does he have? It is important to remember that a mediator who is good in handling one type of case, may not  be a good  in another type of case.  A mediator who is really good in facilitating settlements in divorce cases, for instance, may not be the best mediator to select in a complex litigation case involving a number of convoluted issues or multiple parties.

V. Effective Mediation Strategies

All settlement negotiations take a certain amount of skill and strategy on the part of the attorney. This is especially true in mediations.  Nevertheless, mediations are different because the attorney has to relinquish a certain amount of control over to the mediator.  Additionally, the settlement tactics used should be explained to the client, who may be confused about the process or the apparent changes in strategy throughout the course of the mediation.  He mediation process is also different because the client will play a more active role in the in the actual settlement negotiations; therefore, the client will need to know what information they may reveal to the mediator, and when. 

Other considerations may include the time of the mediation, the date, and the location.  Because the amount of time it can take to complete mediation can be unpredictable, it is generally better to start mediations in the morning to ensure sufficient time for negotiations.  It often helps to make sure the mediation is held in a location where lunch can be obtained fairly easily.  It also helps to choose a location with reliable phone and internet access. Because so many unknowns can occur during the time it takes to mediate a case, having quick access to external support, whether it be a litigant’s spouse or an office paralegal, is always beneficial.  Lastly, know what is going on the day of the litigation.  Is it the holiday season?  Is the local NFL team having a big play-off game that evening?  Good or bad, predictable or not, the date selected for a mediation may have an impact on its effectiveness.  If a big game is on that night, the parties may be distracted and anxious to quickly complete the process.  This could lead to a prompt settlement or it could cause the mediation process to fall apart.  Because of such unpredictable consequences, to the extent possible, the attorneys should consider such factors when scheduling the mediation.

VI. Sealing the deal in mediation

Make sure all the parties are at the table during the mediation process.  This includes the plaintiffs, the defendants, and the insurance adjusters.  If there are multiple plaintiffs, each one should be willing to participate.  If a structured settlement is a consideration, it would be helpful to have the representative who will be handling the structured settlement there as well.  While it is better for everyone to be physically present, if that is not possible, every key player should be available by phone.  While some mediators allow the attorney to participate in mediation without the client being present, this strategy is not recommended and some courts require that the clients attend in-person.  Having the client there ensures that the client understands the negotiation process that was involved in reaching the settlement agreement and gives the client the opportunity to actively participate and ensure that their concerns have been considered.

VII. After the mediation

During the mediation, the mediator will have the parties sign an agreement which lays out the basic terms of the settlement.  This is usually a one or two page document that identifies the parties present and lays out the amount of the settlement that was reached.  It may also lay out the terms of a structured settlement.  More often than not, the parties will thereafter prepare a longer, more complex settlement agreement that includes the standard provisions of a settlement contract.  Depending on the technology available at the mediation, this may be finalized before the parties leave as well.  To make sure that there is a clear meeting of the minds and that the final settlement documents get executed without unnecessary delay, it is important to make sure that the key issues are agreed to and documented in writing before the mediation ends. 

VIII. Conclusion

It has been said that no party should ever expect to walk away from the mediation process with everything they wanted.  Unlike a trial, there is often no clear winner.  The benefit, however, is that a client can get much of what they want.  More importantly, the final determination of whether to accept what is offered, or to walk away lies solely at their discretion and gives them a stronger sense of control over the process of mediation.  There is no authoritative judge or jury of peers deciding their ultimate fate.  Instead, mediation places their fate in their own hands. 

By making sure clients understand the pros and cons of the mediation process and understand the process involved, clients can often walk away with a greater sense of satisfaction, and ultimately, both sides can win.


Sharrolyn Miles