Talk to your clients about the mediation process beforehand. Some clients may have a vague idea of what mediation is all about; many will have no idea at all. A good mediator will spend some time in the opening session explaining the process to the parties and answering questions posed by the parties about the process, but the chances of a successful day are enhanced if the parties have already been educated on the process by their attorneys. It only takes a few minutes to do this; it can save hours in the caucus rooms if you will do it.
- Make sure your clients have realistic expectations. A plaintiff that has asked for $3.5 million in his Complaint is not going to get $3.5 million by way of a mediation settlement. Likewise, a defendant in an admitted liability case is not going to walk out of the room with the plaintiff’s agreement to dismiss with prejudice for nothing. Talk to your clients about the realistic settlement value of their cases so that the inevitably offensive opening offers that are exchanged do not derail the mediation before it even gets going.
- Have all the right people present. We all understand that out-of-state insurance adjusters cannot physically attend every mediation for which they are responsible. Nevertheless, having that person with final settlement authority in the room is invaluable for a variety of reasons. And, if this is simply not possible, please make every effort to insure that “available by phone” means that the adjuster will truly be available by phone. Hours can be lost waiting for a return call from an absent party representative, and this benefits no one.
- Be upfront about the time we have available. You might be surprised to learn that more than a few mediations are terminated without a settlement because someone essential – usually an attorney – informs everyone at some point during the session that he or she has something scheduled later in the day and has to leave by early afternoon. If we all know this prior to beginning the mediation, we can adjust the agenda accordingly. If we don’t know it, we are already starting the session on a bad note.
- Let your clients speak. Particularly from the standpoint of the plaintiff, often it makes a world of difference if the party simply gets a chance to get something off of his or her chest. Venting can be extremely constructive so long as it is controlled. Neither the attorney nor the mediator should ever cut off a party that wants to speak. Aside from being a bit rude, it can leave unspoken a salient point that might otherwise bring the parties closer together.
- Have an opening offer ready. Another frustration we mediators encounter on occasion is the opening offer standoff. Generally intended as a show of strength, it is one of the biggest impediments to efficient use of the time we have available. If one party agrees to make the first offer in mediation, great. If that party declines, for whatever reason, the other party should take the initiative to get things started.
- Don’t grandstand in front of your clients. Your client has faith in you and believes in you; otherwise he wouldn’t have hired you. There is no need to try to impress your client and inflame emotions with over-exaggerated responses to offers that you deem unacceptable. All that will do is reinforce your client’s already shaky trust in the process. It is much more constructive if you remind your clients that the “rules of negotiation” work this way, and that the offer just received is most certainly not the best offer that will ultimately be received.
- Be willing to be creative. Almost all disputes are resolved by agreeing to an adequate amount of dollars and cents to compensate the aggrieved party. Occasionally we run into cases where it is not all about the money. To some clients, an apology, an affirmation, or a validation are part of what they seek. Yes, you receive your fee in dollars and not in affirmations, but the case (and its ultimate resolution) belongs to your client. If the mediator broaches the subject of an apology or something along those lines with your client, indulge him. It may be a lost opportunity if you don’t.
- Preach patience and perseverance. The good mediator will remind your client during the day that he or she should not get discouraged and should stay optimistic regardless of the present situation. This is only constructive if his urging is seconded by the party’s attorney.
- Only mediate if your case is ready for mediation. Some disputes can be effectively mediated before suit is filed; some cannot. Sometimes a case calls for extensive discovery before an attorney can make an educated recommendation to his client regarding a likely outcome or a settlement value. One of the most frustrating situations we run into from time to time is the mediation where negotiations go nowhere because the attorneys do not have enough information to justify recommending a settlement to his or her client. Those same cases may be easily settled a few months down the road, after documents are exchanged and depositions have been taken. Unfortunately, in that case, the premature mediation is rendered a waste of time and money.
This is by no means an exhaustive list and it is not the product of scholarly research. It is simply a set of suggestions that, if followed, will improve the experience of going through mediation for the client, the attorney and the mediator. I hope that you find something of value in this list, and I hope that I get the opportunity to serve as a mediator for you in the future.
Hamlin Dispute Resolution, LLC
Memphis, Tennessee and Little Rock, Arkansas
June 3, 2013