Are you looking for mediation tips and tricks that work? America has a well-deserved reputation as the most litigious society in the world. Culturally, there is a significant focus on vindicating rights, winning, and competition as ends in themselves. While involvement in litigation is viewed as shameful in some societies, Americans generally view it as the natural progression of conflict.
Despite this, only about 2% of cases go to trial. As Professor Marc Galanter has repeatedly pointed out, the number of trials has steadily declined for decades. Some are decided by motions or voluntary dismissal, but most are settled. Since at least the 1990s, 98% of Fortune 1000 corporations have used mediation as a prevalent choice for a successful resolution. In addition, since 1992, state and federal courts have made mediation mandatory in most litigation.
Since the mediation process is so much a part of litigation and such a standard method of alternative dispute resolution, every participant should know the techniques to ensure success. The five simple and practical tips and tricks will get you closer to achieving a successful mediation.
5 Simple Mediation Tips & Tricks
Aggressive counsel or parties often expect resistance to mediation because they consider it a lost cause or view settlement discussions as a sign of weakness. This is short-sighted. Mediating parties successfully settle disputes between 80% and 85% of the time.
The statistics above show that mediation is highly successful, even in complex cases. Even when mediation does not result in an immediate agreement, research shows that four out of five “failed” mediations lead to resolution within two weeks, as participants continue to think about settlement.
Practice: Mediate Whenever You Can
Although there are no studies on the subject, this author’s experience with subsequent mediation sessions shows that they continue to resolve cases effectively. This is because the parties know more and have more time to think and communicate about a mutually acceptable agreement or settlement, As well as have time to think about the conflict in light of the neutral’s input, and have usually pared the issues down since the first attempt at mediation. In addition, they often are more motivated as the risk of trial draws near. All in all, a subsequent mediation process is well worth the effort.
Let the Opponent Choose the Mediator
Longtime mediator and Forbes Leadership Forum contributor Richard Shore recommends letting the other side pick the mediator, saving objections for truly concerning conflicts of interest. As counterintuitive as this idea is, there are several good reasons for doing it.
Mediation is meant to be speedy, economical, and cooperative. However, parties often begin the process with a mediator-selection method that is complex, expensive, time-consuming, and adversarial. Avoid this paradoxical opening battle by letting the other party pick the mediator. This promotes cooperation, creating goodwill. It also speeds up the process, reduces costs, and exposes you to new mediators you might not otherwise encounter.
Don’t reject someone because the other party thinks the neutral third party will favor them or their position. That can be an advantage for you. For example, suppose a party’s perspective is that its chosen mediator is on its side. In that case, the mediator will have more credibility with your opposing party than someone seen as entirely neutral or leaning in your favor. Sometimes, such a mediator will bend over backward to be fair to your side.
Role of a Mediator
Realistically, the only way a mediator can build a successful practice is to maintain his or her reputation for neutrality and fairness carefully. So, actual bias from a professional mediator is unlikely. That said, diminish any advantage your opponent may gain from familiarity by doing your homework. First, learn about your mediator’s likes, dislikes, and style.
Since a mediator is not a decision-maker, they cannot force you to accept a settlement you do not want. Therefore, there is little risk in accepting a mediator chosen by the other side and much to be gained.
Make Use of Settlement Counsel
As it is practiced, most American litigation is aggressive and competitive. As a result, litigators often cultivate fierce reputations to attract clients and intimidate opponents.
Litigation attorneys who bill by the hour face a complex problem. They must be aggressive enough to routinely convince opponents that they are ready, willing, and able to take the case as far as needed.
This will maximize recovery and maintain a formidable reputation, but not so aggressive that settlement negotiations are negatively affected. They also face a conflict of interest because although the settlement is often best for the client, it stops the billing on which the lawyer’s livelihood depends. Too many settlements at once can drive even a major firm into bankruptcy.
Minimize Conflicts of Interests
Litigators who bill on a contingency basis face the opposite conflict of interest. They are expected to face a significant burden of litigation expenses and are unpaid until the case is resolved. They are incentivized to settle the case quickly with little work, but maximizing the client’s recovery may require significant effort.
Also, litigators are often untrained in settlement theories and techniques. These are not part of most law school curricula, with some notable exceptions. The competitive litigation approach is at odds with the cooperative, win-win approach that has been shown to increase overall results.
One way to eliminate the conflicts of interest and other problems that arise when litigators are in charge of the settlement process is to separate the litigation from the settlement process and use separate counsel. Litigation and settlement are different skills. They call on different abilities and involve distinct mindsets. Accordingly, parties ought to be at least as careful in choosing settlement counsel as they are in selecting litigation counsel.
Don’t Focus On Who is Right
Of course, there will be disagreements on the facts and the applicable law, or there will be no reason to continue litigating. Some evaluation of the strength of legal arguments or evidence is necessary to measure the relative merits of each party’s case, which will affect the case’s settlement value.
Don’t focus solely or even primarily on the case’s merits. Remember, the purpose of mediation is not to win an argument; it is to achieve a mutually beneficial settlement. Of course, some discussion of the merits is appropriate. However, winning the legal or factual argument is only worthwhile if it contributes to an eventual settlement. At most, it is a tactic. Don’t let it derail the dispute resolution process.
Usually, by the time of mediation, the parties are intimately familiar with the relevant issues and have already assessed the case. Too much focus on winning technical arguments can harden positions, antagonize the other participants, and lead the conversation away from the settlement goal.
Winning arguments for the sake of it is an expensive, counterproductive waste of time and money. Instead, move on to a negotiation over the key settlement terms as soon as possible. Then, there will be plenty of time to argue over the law and the evidence if the mediation fails and a trial is necessary.
Prepare for Mediation
Especially when mediation is mandatory rather than the parties’ idea, people tend to show up and expect the process to take care of itself. However, you cannot simply attend mediation without a plan and expect success. Thorough preparation will allow you to credibly justify your position and predict what the others in the mediation will do.
To achieve the most favorable settlement possible, parties need to know as much as possible about the subject of the negotiations. This may mean investigating a product or market, consulting experts, and researching verdicts in prior similar cases.
It is also essential to know as much as possible about the needs, goals, interests, and motivations of the other party or parties. Finally, become thoroughly familiar with the applicable law, the facts, and the consequences for your family and your business of settling, pursuing, winning, losing, or appealing the litigation.
Preparing well for mediation also means accurately assessing potential damages recovery, potential liability, and the likely outcome if the matter goes to court. All of this requires preparation and a possible expert opinion before the mediation.
In preparation for the mediation, decide what you want, can’t do without, and what you are willing to give to achieve your goals.
Use your preparation time to plan your response to likely demands and decide on concessions you will make. Be flexible in your strategy. Your plan will change as you listen and learn during mediation.
Allow for Game Plan Adjustments
Planning concessions is not defeatist. Reciprocal concessions are expected. We are culturally conditioned to expect concessions during bargaining. Their absence leaves us dissatisfied and badly treated; it will stall bargaining. Appropriate concessions drive negotiations forward.
You must think about what will happen if the mediation fails. But first, you must plan for at least temporary failure. As counterintuitive as it seems to plan for failure, knowing what you will do if you can’t agree significantly impacts negotiation strategy.
Know your Best Alternative to a Negotiated Agreement, or BATNA. Knowing your fallback position tells you where to set your bottom line—when it is better to walk away than agree. In most instances, an unsuccessful mediation does not end settlement efforts.
Nevertheless, mediation participants should also know the Worst Alternative to a Negotiated Agreement or WATNA. What happens if everything falls apart? Bankruptcy? Lawsuits? Foreclosure? Lower profits and fleeing shareholders?
Knowing the worst that could happen and the probability of it is at least as necessary as having a fallback position in crafting your strategy. So, don’t expect mediation to fail. But do prepare for it.
Final Thoughts
What needs to be done to prepare for mediation will vary by what is at stake and how much time is available. But the more you know— about the neutral, the other party, the case, and your situation— the better the mediation will go.
If you take these tips to heart, your mediation experience will be faster, less expensive, less confrontational, and more successful overall.
To learn more mediation tips and tricks, conflict resolution techniques, and more, contact ADR Times!
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