Author/Source/Copyright: Mitchell Rose
1. PREPARE YOUR CLIENT
Your clients need to know the “whys” and “whats” of mediation beforehand so that their expectations are managed. Mediation is also more productive if they are introduced to the concept of settlement early on.
2. ENSURE ALL DECISION MAKERS ARE PRESENT
While parties should be present, there may be others in the background who are essential to the decision making process and whose presence might ensure success: i.e., spouses, silent partners, other counsel or trusted advisors.
3. DON’T GET LOST IN TRANSLATION
Treat the mediation as you would treat a discovery or trial. If there is a language barrier then you need to ensure that your client understands what is being said and that others (including the mediator) understand him or her. Bring an interpreter.
4. THERE’S A REASON IT IS CALLED A “BRIEF”
Avoid a ‘kitchen sink’ approach to your mediation brief by focusing on the bare essentials in terms of a summary of facts, issues and the law — as well as which documents are included. Less is usually more. On the subject of briefs, ensure that your client has not only read your brief, but the other side’s as well.
5. BRING THE ENTIRE FILE
What keeps mediation interesting is that you never know what will come up. Therefore, try to have everything at your fingertips, whether in paper or electronic format. As well, if you are seeking costs, a summary of your fees and disbursements is essential (i.e., PC Law ledger).
6. STAY AWHILE
Try to be available for the whole day – even if you have booked only a half-day mediation. Every mediation has a life of its own. Sometimes momentum can suddenly build later than expected and rushing off can derail progress.
7. MINUTES MATTER
Consider bringing draft Minutes of Settlement and a release with you – just in case. It can save time and money. Documents in electronic form on a USB key or laptop are especially handy.
8. WHY WAIT TO MEDIATE?
The trend toward earlier mediation in lawsuits is a positive development. Consider mediating even earlier when costs and stakes are lower: Shortly after an employment termination (to read why click here), prior to discovery in a personal injury action or before a Claim is issued in any type of case.
9. ‘SOUP IS THE MEAL’
What does a classic Seinfeld episode have to do with mediation? Everything. Instead of treating mediation like an appetizer before you get to the real meal (trial, a summary judgment motion, etc.), treat mediation, and prepare for it, as if it were the main course. The likelihood of court intervention is statistically low and the chances for successful resolution at mediation are high – if you prepare for it.
10. WHATEVER WORKS
Trust the process and listen to your mediator. If he or she recommends a joint session, or even a meeting with the parties without counsel, at some point then remain open-minded. There is often little to lose and much to gain.
11. RESPOND, BUT DON’T REACT TO BAD NEWS
Do you believe the other side is being unreasonable? Before packing up and walking out, respond by adjusting expectations and making the most of the mediation by not catastrophizing. Ask yourself: “is there something useful that can be accomplished today?” Usually, the answer is “yes” and it can lead to a settlement in the near future.
12. KEEP TALKING
Similarly, when you reach an impasse, keeping the conversation going can lead to an unexpected breakthrough in the negotiations.
13. PESSIMISM PAYS
Dr. Martin Seligman, author of the best-selling book Learned Optimism (2006, Vintage) suggests not being optimistic if planning for a risky and uncertain future (p. 209). Given litigation’s risks and costs, consider this in the privacy of caucus. To read more about the value of “learned pessimism” at mediation, click here.
14. USE ‘MEDIATOR FOLLOW-UP’
If the mediator offers to follow up with the lawyers should a settlement not be reached at mediation then take him or her up on it. With proper attention, many cases can settle in the days or weeks following mediation.
February 9, 2015 & March 30, 2015