5 Quick Tips for Success in Mediation

The challenges and opportunities in the mediation of a case are as numerous and unique as there are cases, lawyers and clients. Here are 5 quick tips on recurring themes:

1) Thorough Preparation by Counsel

Where counsel does not understand the case, and cannot speak fluently and persuasively about the issues, the opposition will know it and usually take a less flexible negotiating position. It is imperative that each lawyer understand both the positive & negative aspects of the case and deal with them head-on in the negotiations. Credibility and resourcefulness are critical.

2) An Unprofessional Attitude Can Trump All

Predictably, persuasive advocates are usually emotionally involved to some degree. But zealous advocacy should never rely on personal attacks that will only inflame the opposition and sometimes become the sole impediment to settlement. I have mediated three medical negligence cases over the last couple of months and they all settled, in large part, because the lawyers were thoroughly prepared, civil, stayed on task and got it done.

3) Unwillingness to Deal with Negative Information

In a previous article, I commented on the practice of some lawyers to use mediation as a pretext for some ulterior goal. See Recipe for a Successful Mediation.

A related problem is where the lawyers or their clients are simply unwilling to deal with negative information. This cognitive rigidity can undermine the process and project an image of inflexibility causing the other party to lose confidence that a compromise is possible. The willingness to discuss the negative information serves to satisfy the opponent’s desire to discuss their strong points which does not mean that they won’t compromise and settle the case.

4) The Recalcitrant Party

Some people (including some lawyers) seem to get up every day just to make the lives of their lawyers and anyone else in the zone of danger, miserable. We have all represented challenging clients and dealt with difficult lawyers. Mediation can reinforce for the client what they have been previously been advised by counsel. Hearing it from a neutral third party in private sessions is effective in demonstrating that a proposed settlement might actually represent a “win” for them.

5) Over-emphasis on What the Settlement Means to the Opponent

It is human nature, and often a mistake, for a litigant to focus more on what a proposed settlement will mean to the other side than to themselves. Comments like they aren’t paying enough, or they are getting way too much, or this will not punish them enough, present both a challenge and opportunity to guide the litigants back to the real question – whether the terms of a proposed settlement will benefit them without regard to the benefit to the other side. Lawyers, who understand the difference and work to keep the clients on track, enjoy better settlements and happier clients.

Conclusion

While there will always be some cases that require trial, where counsel and the mediator anticipate the challenges, are conscious to the common themes that routinely appear, and approach the process with a can-do attitude, even the most difficult cases can often be settled.