Our resident mediator, Judge Meloni offers attorneys helpful tips to help mediate the best outcome for the client.
By the time you reach the mediation table you would have considered all the advantages of mediation - speed of resolution, cost savings, party input in the resolution, confidentiality, and finality - and determined it is the right method for the resolution of your matter.
You should also have had a frank discussion with your client explaining the difference between litigation, arbitration and mediation, and the advantages of mediation, as well as the role of the mediator as a neutral. They must understand that the mediator is not there to determine who is right or wrong but to facilitate a resolution of the dispute.
Lastly, as you have been told since your first day in law school “be prepared.” You should have submitted a mediation statement to the mediator outlining your position and its supporting legal and factual basis. Review your submission and file before the mediation. As often happens in our profession, time escapes us. Suddenly the day of mediation is here, you grab the file, run to the mediation and hope you can review the file at the table or remember enough to get by. That is not a good way to start. Being at the top of your game at mediation is as critical as it is at trial.
Once you are at the mediation table, here are some hints that may help you resolve the case:
Have the Right Demeanor
The attorney’s demeanor at the mediation sets the tone for the negotiations. Be confident, but make it clear that you have come ready to resolve the dispute.
Many times an attorney or a party will say or do something that will suggest that they are not committed to the mediation process.
For instance, in one multi-party case I recently mediated, one attorney announced in the opening session he was only there because the other parties wanted to mediate and he was going to observe.
In another case, a litigant announced that he was there because his lawyer wanted him to participate and he had agreed to pay for one hour of mediation but was not optimistic.
In both of these cases, the wrong message was sent at the outset. In each case, I spent a considerable amount of time in the private caucus convincing those parties to rethink their attitude toward the process.
Although neither one of these cases resolved, significant movement on each side occurred. I suspect that had I not spent so much time persuading the objecting parties to commit to the mediation, it would have been more successful.
Put Yourself in the Other Party’s Shoes
Some litigants and their attorneys look at the facts of the case only through their own eyes. It is important to understand the other party’s position. To do this, you must listen to their side of the story and with an open mind evaluate the strengths and weaknesses of their case, and be willing to accept any valid points they may make.
Taking an approach that rejects whatever the other party says will not lead to a resolution.
On the other hand, listening to the other side’s position and identifying areas of agreement will help to reduce the issues to be resolved and build trust with your adversary.
Focus on Resolving the Dispute Not Finding Fault
One of the most important reasons for choosing mediation over arbitration or litigation is that there is no finding of fault or determination of right or wrong. However, some litigants are looking for such a determination. I have seen this mostly in LAD cases where an employee alleges wrongful conduct by an employer and wants the employer punished, or where the employer contends the employee’s assertions are without merit and wants vindication.
The desire for this type of result is fueled by emotion, which is going to be present in any dispute. The attorney must seek to eliminate the emotion and have the client look beyond their feelings to resolve the dispute as you would make a business decision. That is balancing the pros and cons of any proposed resolution on their merit.
Demand and Offer
The essence of the mediation process is to massage the demand and offer until there is an agreement. An unreasonably high demand will spawn an unreasonably low offer and lead to each party saying the other is not truly interested in settling the matter. It is important that the proposed resolution bear some relation to reality.
In making a demand or offer, counsel should evaluate the case the same as they would for trial. Consider the question of liability. Do the facts and law support my claim? What are the nature and extent of damages? Can I overcome any evidentiary problems?
Provide the mediator with the rationale or explanation for the demand or offer and ask the mediator to convey the same with the expectation that your adversary would provide a basis for their response.
Mediation is a give and take process. Patience is required. With a continued dialogue a reconciliation of interests can be achieved and the mediation a success.
Whether it is negotiating a contract or addressing a jury, lawyers are called upon to be persuasive. In making the argument for your position, be respectful to the other party. Listen to their wants and needs, and use logic to support your stand. Time your strongest argument for a point in the process when it will have maximum effect.
When you come to mediation, remember why you chose this form of dispute resolution. Be committed to making it work. Be patient and prepared to continue talking, even if it involves going into another session. The ultimate result in avoiding additional time, effort and a potential trial with an uncertain result, is well worth it.
For more information, please contact Louis R. Meloni, J.S.C. (Ret.)
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.