Successful Mediation Strategy: 12 Proven Steps for Lawyers and Lay Persons

Successful Mediation Strategy

Successful negotiations require sound strategies. Today we present 12 recommended steps for developing productive mediation strategy to resolve any seemingly intractable conflict between parties.

The successful strategic mediator-advocate negotiation methods used by excellent attorneys all incorporated the following four characteristics.

Be Prepared – Like trial work, being prepared is paramount. Coming to a mediation session with all of the pertinent laws and related facts present a position of negotiation strength with the ability to be persuasive and convincing to the other side. This presentation also builds client confidence in the potential to receive the most advantageous settlement available.

Transparency – Mediations are opportunities for the forthright exchange of information between all concerned parties. Cases can settle when everyone has sufficient information to assess their litigation prospects. Intentionally withholding information risks counterproductive results and having the other side become suspicious of case weaknesses.

Tolerance – Many mediation cases, whether you are the attorney or the mediator, will require working extra hours, needing additional sessions, and even substantial telephonic follow-up work. Avoid rushing the process or the temptation to give up by staying focused on your objective.

Compromise Flexibility – This characteristic is the most important. Mediations are successful when both lawyers and clients realize most lawsuits involve risks and the participants are willing to compromise for a reasonable resolution. Any party determined to “win” is wasting everyone’s valuable time and expense.

THE 12 STRATEGIC NEGOTIATION STEPS FOR SUCCESSFUL MEDIATIONS

A successful negotiation involves 12 essential steps based on common sense. When you have the 4 characteristics previously described, following these steps become automatic.

STEP 1: INITIATING THE MEDIATION – THE FIRST COMPROMISE

Very Far Apart – There are two main reasons people hesitate to mediate. One reason is the belief that both sides are “very far apart” and the other reason is the perception that “it will waste time because the opposition is being unreasonable.”

When a mediator hears these refrains, he or she can point out that those polarized views are exactly why mediator intervention is necessary. If both sides are already close, they probably would be able to reach a case settlement on their own. Many cases thought to be hopeless were still settled at the table.

The majority of Mediation cases start the process with both parties in direct contrast to each other. They are diametrically opposite about responsibility for the case. The initial offer put on the table looks like a token reply to the stated demand. But, the longer that dialogue is maintained the closer the parties can usually get to a resolution.

Just Get It Started  – The one thing that mediators are not is they are not miracle workers. But their success is in knowing that both sides of a case are never so divided that they are unable to consider a settlement. When emotions are the driving force behind disagreements rather than being based on reason, it takes time to subdue the emotions so that a resolution can then follow. Some good advice to reluctant parties is to “Just get it started.”

STEP 2: THE BEST TIME FOR MEDIATION

In a perfect scenario, the parties agree to mediate quickly after a dispute arises. In real life, the parties frequently do the opposite and delay until the eve of the trial. Concessions can frequently be obtained when the other side is facing a trial date deadline. The closer a trial date approaches, the more people become open to a compromise rather than endure the uncertainty of a trial.

Timely Intervention – There are two common situations where cases are settled through early intervention. One situation is if the case is not very strong and the plaintiff desires a conclusion before excessive time and money have been expended. The other situation is when a plaintiff re-evaluates proceeding with an ill-advised lawsuit.

Occasionally early compromises are advantageous for strong cases. An example would be the need for an early resolution if an injured plaintiff wants to avoid financial hardship. When these situations occur you must accelerate your preparation related to fact investigations and required discoveries. The defense also is entitled to evaluate the merits of any claims.

Court-Ordered Mediation – Courts occasionally refer parties to Mediation before cases are settled. When this happens, counsel can use this interceding time to simplify discovery, share information, and establish the foundation for future deliberations. This approach often results in cooperation and settlements.

Communicate with Opposing Counsel – Two routine options exist for determining the right time for Mediation. One option is to speak with opposing counsel about whether or not the case is ready for settlement. The other option is to request the mediator to confidentially speak with each side to determine when the parties will be ready for a case resolution.

STEP 3: SELECTING THE RIGHT MEDIATOR

The outcome of Mediations can rest on the qualifications and techniques used by the mediator. Learn what you can about someone’s professional background before retaining that person. Compare your information with the following five factors to determine if this mediator meets your expectations.

Methodology – The two operating styles portrayed by mediators are to facilitate and to evaluate. A facilitator does not express any case merits but encourages talk between the parties to arrive at an agreeable resolution. An evaluator does express an opinion related to the case merits. An effective mediator will use one or both applications of methodology as the case requires. A mediator does not offer advice to any party on what action to take regarding their individual case.

Acquaintanceship – There is no ethical rule that prohibits using a mediator who is familiar with or has previously dealt with any of the case participants. The accepted protocol expects mediators under consideration to disclose any prior acquaintanceships with any of the participants in the case. In anticipation of successful Mediations, numerous litigators will retain a qualified mediator that is known to and trusted by their adversaries.

Settlement Oriented – A large number of cases are not resolved during one session. A consummate mediator has the patience required to pursue the case and work with the participants until there is a settlement.

Substance Expertise – Lawyers prefer a mediator who possesses expertise related to their case under consideration for settlement. Mediators without direct or relative expertise face a learning curve when evaluating positions. A mediator with subject matter knowledge becomes more valuable when the expertise is combined with the desired processing attributes.

Education and Experience – The best-qualified mediator for your case will have a combination of subject matter expertise, formal education in processing Mediations, and substantial working experience. Lack of qualifications may present a risk in achieving your desired settlement results.

STEP 4: PRE-MEDIATION COLLABORATION

Settling cases, regardless of their size or intricacies can demand an inordinate amount of effort and time. A strategy to ease the workload demands is to initiate a collaborative relationship with each counsel involved at the case outset.

This step begins with pre-Mediation telephonic conferences involving the mediator and the lawyers. Unlike arbitration, in the Mediation process, ex parte contacts are totally acceptable and everything said is confidential.

Topics of Discussion – Major issues requiring discussion during pre-meeting conferences include several essential strategy steps discussed in this ADR Times article. Issues include:

  • Ensure participants with full settlement authority attend the meeting.
  • Scheduling sufficient time for Mediation completion.
  • Schedule an agreeable date for the position papers to be exchanged.
  • Ensure attorneys prepare their clients for the joint session.
  • Emphasize the importance of delivering a convincing presentation in a joint session.
  • Discuss details of the process for everyone’s understanding and comfort.

Confidentiality – Any advance telephonic communications with a mediator is a gateway to convey in confidence any useful information that may prove helpful in the case settlement. This information may extend to personality or emotional topics. If needed, you may ask for the mediator to help with explaining litigation realities to the client.

The more information shared in advance, the better positioned the mediator is to assist in the case settlement. Take advantage of advance communications to let the mediator know what considerations will best resolve your case.

STEP 5: HOW MUCH TIME TO SCHEDULE

Attorneys who retain mediator services and want to schedule an entire day for their mediations are being reasonable in their expectations. They are acknowledging that successful resolutions may require extended periods of time. And, even with a full day set aside for a negotiation, settlements may be reached.

Conversely, attorneys who want to set aside only a couple of hours for their sessions often find that arbitrary time limits will expire without their cases coming anywhere close to resolution. When their time is over without settlement the attorneys are left with needing to schedule additional sessions or going into a court without anything being resolved.

Regardless of how confident you are with the facts and figures of your case, there is always the chance of a case problem that has been overlooked or that emerges during your session. What may appear simple to one party may not appear so simple to another participant. Patience is one of the four characteristics previously mentioned that will work in your favor when a final resolution actually takes a full day or more. Additionally, the mediator requires time to explore the case issues and litigation risks related to all parties prior to guiding both sides through the Mediation process.

Some cases will settle within a few hours and other cases will last until late in the evenings. Try to schedule a session for the entire day and to begin in the morning. Each case is unique and there is no definitive way to know how long it will take to reach a settlement. Finishing early is fine, but you don’t want to run out of time before you are finished.

There is no single answer on how much time to schedule. However, when both parties want to settle they must be prepared to spend as much time as necessary to reach a resolution.

STEP 6: CLIENT PREPARATION

Before coming to the table prepare your client on the functions of each participant. Have an advance in-person meeting with your client to discuss the following points.

  • The mediator is a neutral party and does not decide which side is right or which side is wrong.
  • It is important to impress both the mediator and the other side.
  • Don’t expect a case evaluation from the mediator who generally knows less about your case than all of the participants.
  • A compromise is more likely between people who are reasonable and courteous and amongst people who respect each other.
  • No exaggerated or false statements that will risk damaging your credibility.
  • You must provide the other side with everything they require to analyze the case.
  • Focus on the problem and not the people to avoid personalizing the case.
  • Be prepared to concur with the other side when they are right.
  • Keep two numbers in mind: our initial request and what you actually want. Remember that an open mind is more productive than a bottom-line approach.
  • Prepare to stay at the table until the case settles or until the mediator declares that we have reached an impasse.
  • Don’t become discouraged if the case is not resolved during the first meeting as some cases require additional sessions to reach a settlement.

The foregoing points will let the client know what to expect. You should review the client’s remarks as the client will likely speak during the Mediation. Your best asset can easily be a client that is well-organized and articulate.

STEP 7: POSITION PAPER PREPARATION

A position paper serves three functions. It informs the mediator on the foundation of the case, it highlights the case strong points, and it sets the foundation for a successful negotiation. Here are suggestions to help you achieve these functions with a powerfully written position paper.

Remember Your Goal – The objective of your position paper is to promote the end of the dispute, not to express indignation or derogatory allegations at the other party. Refrain from name-calling, finger-pointing, and defamatory accusations that are counterproductive to your goal. Use the letter format rather than the pleading format.

Share Position Papers – All parties must agree to enter the process in good faith and to cooperate with the exchange of information. When one counsel refuses to provide the other side with copies of position papers it raises suspicion about the strength of their position. Withholding information indicates there may be flaws, weak arguments, or something to hide. To establish a level playing field, request the mediator to schedule a date several days prior to the session for exchanging position papers between all parties.

Support Your Case Arguments – The mediator will review your position paper to learn the factual case background, pertinent case issues, and where the parties are in agreement and disagreement between the parties. Remember that the opposition will also read your position paper to learn the strength of your position. Supporting arguments do not need to be lengthy legal briefs. Include key documents and other key exhibits. Attach copies of cases you think are controlling.

Express Interest in Case Settlement – The other party’s position paper may be discouraging when it contains statements that you disagree with. However, there is room for optimism for a case resolution when there is a statement in their paper regarding interest in settling. When you see such a statement, practice the golden rule, and include a similar statement in your paper.

STEP 8: REAL SETTLEMENT AUTHORITY

The number one cause for a failed joint session is the absence of representatives with real settlement authority. A representative with settlement authority means this person is vested with the power to agree to the terms necessary and reasonable for the case to be disposed.

Limited Settlement Authority – Occasionally, client representatives come to a Mediation session with purported full settlement authority but in fact, only have limited authority based on their party’s unilateral case evaluation. If the case requires a settlement term authority that is beyond the limited authority of the client’s representative, the case cannot be disposed. If the opposing side has full settlement authority they may perceive the situation as an uneven playing field and potentially lose interest in mediating further. Bringing the two sides, with full settlement authority, back at another time may not be successful.

There are two alternative actions that you can pursue in the event that the person with unlimited discretion to settle is not able to be present. One action is to reschedule the meeting for a time when the authorized person will be available. The other action is to have someone present with reasonable settlement authority and arrange for the ultimate decision-maker to be on the telephone during the meeting. If there is to be a telephonic situation procure an advance agreement from the mediator and all of the other participants.

Institutional Settlement Parties – Mediating sessions that involve organizations such as insurance companies and other large institutions will send a case representative with settlement authorization up to a pre-approved specific amount. This person with specific authorization is based on the evaluation of advance case information submitted to the main organizations. To settle the maximum amount sought for your client, it is necessary that the claimant submit all case-related information in a timely manner.

Part of the mediator’s responsibility is to verify that the people with case settlement authority are present at the session. Intentionally misleading the mediator, as well as any of the other participants about this crucial portion of the process is counterproductive. Ensure that you bring full settlement authority with you while insisting the other parties do the same.

STEP 9: MEDIATIONS BEGIN WITH THE JOINT SESSION

The joint session normally begins the mediating process. The mediator invites all parties to present their positions, moderates the discussion and ensures all participants have the opportunity to speak uninterrupted. Time may also be used for rebuttals and for direct questions to the other party.

There are times when parties ask to omit the joint session or arbitration and go with the mediator directly into private caucus. While valid reasons exist to eliminate the joint session in some cases, only request this action sparingly as the joint session provides valuable opportunities to both sides. Acceptable justifications for eliminating the joint session include when all parties know the case facts and each side’s position, and in cases where high levels of animosity exists and counsel prefers to not have their clients present.

Set the Tone – Being a participant in the joint session is your opportunity to state a willingness to compromise. Reaching an agreement is easier to achieve when the other side trusts that you are participating with a positive attitude, are willing to hear what they say, and are willing to consider their point of view.

Direct Discussions – A joint meeting is often the first time that participants from both sides are together in the same room. This is the time for all parties to be candid and to present their position to everyone in attendance. This meeting will be close to getting a day in court for some clients. If your client possesses an articulate characteristic, take advantage of this opportunity to feature this asset.

In a joint session, you have the all-important opportunity to address the other side directly when delivering your position. Prior communications and documents would have gone through the opposing counsel, but direct communications with the other side can be far more persuasive.

Clear Up Factual Disputes – While the participants believe they understand the case facts, there will generally be some facts in dispute. The joint session, when all participants are in attendance, is the ideal scenario for everyone to hear and understand what the disputes are all about. It is ineffective and possibly counterproductive for the mediator to explain different versions and gather replies from two separate caucuses.

STEP 10: PRESENTING THE OPENING STATEMENT

A presentation is made at the beginning of the joint session by each side that resembles opening statements made to a jury. Regardless of the similarities, a meeting is not a trial. You must remember the following important differences.

  • Speak directly to everyone present and not just to the mediator.
  • Direct your comments to the opposing party and to counsel with minimal legal verbiage.
  • Repress threats and offensive remarks. Present a persona of quiet confidence and not an attitude of righteousness.
  • Discuss in a rational manner what a fact finder might conclude from the evidence rather than what you believe “really happened.” Even if the other side does not change their mind, you may have them contemplating how a trial will view your evidence.
  • Acknowledge any of your case weaknesses and explain how you are going to deal with them.
  • Give effective replies. Ask the mediator for the opportunity to reply to opposing statements. Use this opportunity to show you listened to their comments, summarize their arguments, and point out areas where you agree and disagree.
  • Reemphasize your client’s interest in a case settlement.

You can set the atmosphere for a productive mediation with a good, powerful, low key opening statement. Avoid antagonistic comments or remarks and do not use this session to air aggravations or attempts to hassle the other party. You want cooperation and not resistance.

STEP 11: DEALING WITH DEMANDS AND OFFERS

Here are typical extreme statements that mediators frequently hear during initial caucuses.

  • They want how much?
  • No way is their case even in the neighborhood of that amount.
  • In my opinion, we’re just wasting time with that offer.
  • Are they serious with this small offer?
  • I don’t believe they really want to settle.

A good negotiator generally starts with extreme demand numbers that will leave plenty of room for bargaining. The client needs to feel the lawyer began the process by neither asking for too little nor for offering too much for a settlement.

Mediators frequently must tell each side of the extremely high or low opening numbers especially if the information may be discouraging to the other side. The mediator’s neutrality may be in jeopardy is he or she balks at relating a party’s opening position.

Get Serious – An experienced mediator will prompt the participants to revise unreasonable demands quickly to numbers that represent a reasonable relationship to the value of the case. Any side that finds itself in this situation risks losing credibility and giving the other side an advantage.

The Bargaining Zone – To settle a case, both parties need to be in a zone of bargaining position where the demand and offer numbers are justifiable based on the case facts. The procedure is easier for everyone the sooner the parties get into this zone. Of course, somebody needs to move first and it generally is the claimant, and it is not considered to be a sign of weakness. Presenting a reasonable demand or offer tells the other side you are serious about settling. Ask the mediator to convey that you are willing to offer a major move with the anticipation that they will reciprocate. When you provide the rationale for the new number emphasize the specific issue where you will concede some risk. The majority of the time a significant change by one side will result in a similar move by the other side that paves the path to arrive at an agreement.

STEP 12: GETTING TO THE BOTTOM LINE

It is only natural that a client wants to discuss the bottom-line value of the case before Mediation starts. Starting Mediations with bottom-line strategies sets the groundwork for unrealistic expectations. To make progress for a resolution unrealistic expectations need to be set aside.

Learning Opportunity – Mediating is negotiating but also a learning opportunity. The case evaluation may change with incoming information from the other side. The mediator will give opinions on position weaknesses and strengths. All case information will be taken into consideration when working towards case settlement. The parties need to remember and understand that the case evaluation only happens when the Mediation ends.

Case Value Determination – A lawsuit’s value is determined through a negotiating process. The number that a plaintiff will accept and the number that a defendant will pay determines the worth of the case. Mediators discourage parties from operating from bottom-line approaches because once those numbers are said out loud, they are difficult to retract. Mediation time preparations are better spent concentrating on case strengths and weaknesses, litigation costs, and any potential risks involved if there is no case settlement. Eventually, the bottom line takes care of itself.

Abraham Lincoln said, “A good settlement is better than a good lawsuit.” Considering the vast number of civil cases that have been settled proves how prognostic Lincoln’s statement was. And, the extensive acceptance of Mediation validates this dispute resolution process as a superior avenue for out of court settlements.

Lawyers must use a different strategy to achieve meaningful settlements through Mediation than used in the courts. Litigation skills are not productive in Mediation while deal-making skills better serve the advocate. When you carefully prepare, adopt a candid persona, maintain patience, and remain willing to compromise, Mediation will work well not only for you but for your clients as well.

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Mark Fotohabadi
As Co-Founder & Publisher of ADR Times, Mark Fotohabadi, PhD, MBA, MDR is a visionary and hands-on serial entrepreneur and educator, who has successfully co-founded and led half a dozen companies to sustained profitability and disruptive change in their respective fields.Mark holds a Ph.D. in Leadership from Alliant International University; an MBA in Finance from Pepperdine’s Graziadio School of Business; a Master in Dispute Resolution (MDR) degree from the Straus Institute for Dispute Resolution, at Pepperdine Caruso School of Law; and a BSc degree in Urban & Regional Planning from Cal Poly Pomona.Mark can be reached at (800) 616-1202 xt 701; and via email: [email protected]