Trenam’s Mediation Newsletter: Top Ten Tips for a Successful Mediation
I have been participating in mediations, in one way or another, for over thirty years. Although not every mediation has been successful, I always seem to learn something new; either about my case, my clients, or the mediation process itself. Having been on both sides of the table, and since becoming a certified mediator in 2013 – now guiding the process on behalf of others – I continue to be fascinated by what exactly yields the most successful results. Over the years, I have found the following points to be essential considerations for a successful mediation.
Tip # 1: Mediation is a process, so let the process run its course and don’t get frustrated early.
A good mediator will try to obtain the best possible outcome for all parties to the mediation. That process takes time. The mediator’s ultimate goal is to obtain the best proposal from the offering party, present it to the receiving party for consideration, and hopefully, arrive at a settlement. This process includes discussing the pros and cons of accepting or rejecting various offers, made during the mediation, with the parties. This process, alternating offers and counteroffers between the parties, is at the heart of mediation and must be understood and accepted by the parties in order to give the mediator time to learn the case and develop the best possible outcome. Importantly, the mediator and the parties must work through the process together in order to achieve a satisfactory result. Hence, the mediation process takes time. If the parties quickly lose patience, they (and the mediator) will never discover which of the best options could have been developed. Early frustration will doom the process and often times results in an impasse.
Tip# 2: Save Time – Prepare the Mediator in Advance with a Proper Position Statement.
Knowing the facts of the case and the strengths and weaknesses of the parties’ claims or defenses helps the mediator achieve a successful outcome. It also allows the mediator to assist the parties in properly evaluating their own positions. The more knowledge the mediator has about a case, the better chance the mediator has to resolve it, if not to the satisfaction of the parties, at least to their begrudging satisfaction that they got the best possible outcome. A mediation statement, provided to the mediator well before the mediation, should include the history of the case and what the party feels are its strong and weak positions. This can assist the mediator immensely, save everyone’s time during mediation, and allows the mediator to focus on bringing the parties to a compromise, instead of spending valuable time learning the case.
Tip # 3: Help the Mediator Further by Having a Realistic Case Evaluation
It can be distressing as a mediator, to say the least, when counsel have not engaged in a thorough case evaluation prior to mediation. Whether because of time management issues, the unwillingness to confront difficult facts for themselves or their clients, or the lack of desire to put their “cards on the table,” counsel sometimes fail to fully evaluate their case, analyze any benefits or detriments to settlement, and/or adequately prepare their clients for mediation. Without a good case evaluation, you cannot expect a party to have a realistic expectation of what can be accomplished in a settlement, much less what they want or intend to achieve. Without a thorough case evaluation, settlements tend to be based on emotion, not on good business sense, and may often times leave a party with buyer’s remorse.
Tip # 4: Don’t Expect “Fairness” or Complete Cooperation from the Other Side.
Sometimes, parties will complain the other side is not being “fair,” or is not “cooperating” because their offers are viewed as being too low or without enough movement toward their position. Mediation is not meant to be a “fair” process. And, just because it is not a totally cooperative process does not mean it cannot work to settle a case. Complaining about the mediation process doesn’t get the case settled either. Some parties believe they will get a better result if they are aggressive or uncooperative. This is antithetical to mediation.
It is the mediator’s responsibility and duty to work past any apparent lack of cooperation to obtain the best numbers possible and work towards resolving the case. Notwithstanding that mediation may not be fair or completely cooperative, the parties should at least attempt an honest effort at conciliation. Cooperation doesn’t mean the parties have to refrain from passionately supporting their positions. But compromise is the point of mediation, and the sooner the parties get to it, leaving aside all of the hysterics that sometimes accompany their own view of the matters, the better.
Tip # 5: Be Careful Not to Polarize the Parties
Litigation, by its nature, is adversarial. Some lawyers take that mental position into mediation as well. They mistakenly believe mediation is like an arbitration or trial; they must feel they have “won” to believe the mediation has been “successful.” Lawyers must represent their client’s best interests at mediation, which may mean keeping their own expectations in check. It is the job of the mediator to advise the parties and their counsel that the best the mediator can accomplish is to pull the other party (who is paying the money) to its reserve number or just beyond. The mediator will focus on getting the case settled for a number acceptable to both parties, without the risk of going to trial. If a lawyer representing a party comes out swinging, it can polarize the parties and may result in an early impasse.
The parties and their counsel should be very careful not to antagonize the other side; particularly in opening statements. As a mediator, I tell lawyers to be firm, but conciliatory. Regularly in my mediation practice, often days before the mediation is to take place, I have a call with each attorney to determine if there are any barriers to settlement, like emotional dynamics between the parties or within the parties, or between counsel. A good mediator (and good counsel) have to keep their own sentiments in check, as well as the parties’ emotions. Stick to the facts, make any legal points up front, and don’t mention them again. Approach the mediation in a business-like manner. Emotional outbursts have no place in mediation. If you want to vent against the other party, do it in the shower the morning of the mediation. It will make you feel better, calm you down, and you’re less likely to wreck the mediation.
Tip # 6: Remember the Rule of Reciprocity
In our January newsletter, “Setting the Tone for Mediation,” I briefly wrote on The Rule of Reciprocity, which basically says if you do something nice for someone, they are more willing to do something nice for you in return. I tell the parties at mediations I conduct if there is a low opening offer, they can expect to get a high counteroffer, often unreasonably high. Conversely, making unreasonably high demands at the outset will result in unreasonably low offers. If that pattern persists, it can kill the mediation. If, on the other hand, one party is willing to take a chance and make a substantial opening offer, the other party should respond accordingly. If the receiving party does not, then the party making the initial offer will slow down and make smaller offers thereafter. When the parties insist on keeping their numbers at unrealistic levels, it endangers the process and increases the potential for an impasse.
Tip # 7: Provide the Rationale for Your Offers and Counter-Offers
Many mediators believe providing a rationale for offers/numbers can be unproductive to a mediation. I disagree. The more you can explain the reasoning behind your offer, the better the process will work. For example, a person making an offer may have failed to consider a key document or key testimony that makes the offer weaker than it might appear. Giving the other side the opportunity to call that to the attention of the party making the offer can sometimes bring the parties closer to compromise. As the process moves forward, rationales for numbers may become less important, but it really depends on each mediation. There is no hard and fast rule. I have had successful mediations where rationales for the number being offered or demanded are being traded to the very end.
Tip # 8: Keep Communications Respectful, Reasonable, and Rational
I’ve heard people say mediation is a game and it should be played that way. It is not a game. If you fail, it could be very costly to both sides. Mediation should be a structured negotiation between reasonable and rational people. Business sense should prevail. If it is played like a game, it might be one where both parties lose.
Keep in mind the mediator is compelled to communicate to the other side what you want communicated, whether that is wise or unwise. Without violating the Florida Rule against expressing professional or personal opinions, the mediator can at least tell you whether something to be conveyed to the other side is not a great idea. It is almost never a good idea for the mediator to express an opinion as to the other side’s view of the lawyers, parties, or experts. Indeed, I was once in a mediation where the mediator came into the room and told my clients, both nuclear engineers, that the opposing engineers in the other room thought that they were stupid. I asked him if the other side really wanted that opinion conveyed by him, because it would certainly tell us something about their attitude, and he, astonishingly, said “No, but I know that they think you are stupid so I thought I would tell you what I think they think.” Needless to say, the matter didn’t settle and both sides agreed after the trial that about the only thing they did agree on was how bad a mediator this guy turned out.
Tip # 9: Keep Track of the Numbers Going Back and Forth and What They Mean
You will often hear the mediator tell a party the other side is “sending a message with the number they are proposing.” Numbers mean something. If the opening offer is low and remains low for hours throughout the mediation, it certainly sends the message that the particular party is not going to settle that day for whatever reason. Sometimes the parties have to accept that frustrating reality. The mediator cannot achieve a settlement if all the parties want to do is play games and send negative messages with their numbers. If the mediation is proceeding as it should, “reading the tea leaves” of the offers going back and forth can tell the mediator, and the parties, how far apart they are and how much room is left for compromise.
This is particularly true when the mediation gets to that stage where “bookends” are utilized as a settlement technique. When the mediator suggests bookends, it is because the parties are too far apart on the offers they are making or, conversely, they are moving in the right direction and need to get in to the same range to settle. Bookends should not be employed too early in the mediation for that reason. The way bookends works is that one party will state “If you agree to reduce your demand to X, I will agree to raise my last offer to Y.” The other side can accept the bookend, sending the message that the midpoint between the two bookends is an appropriate place to settle, or the other side can propose a different bookend with a different midpoint. Even if the bookend is rejected and a counter-bookend is proposed, it communicates to the parties how far apart they remain.
Tip # 10: Maintain Your Credibility in Mediation
Puffery is allowed in mediation. It is not unethical to provide an estimate of a price or value in a mediation. A party, through its counsel, can say “this offer is final,” even if the lawyer knows the offer is not final. Most mediators take that language with a grain of salt. Opposing counsel do as well. You could lose credibility, however, by making the final offer threat when, in fact, it isn’t, and you have to back off substantially to settle the case. Also it is not advisable to refuse to negotiate on matters you ultimately intend to negotiate. It hurts a party’s credibility to draw a line in the sand and then retreat from it. This is particularly true for plaintiffs seeking money who often make unrealistic initial demands in order to get what they really want, and have to make big concessions to get there. Wouldn’t it be better to make a more reasoned and rational initial demand, and to communicate to the other side an appropriate range consistent with the value of the case? Maintaining credibility throughout the process improves the chance of settlement.
Keeping in mind these few simple tips above can assist the mediator in amicably resolving your dispute. A knowledgeable mediator can guide you through the process if you listen and approach the mediation with the right attitude and prior preparation. If the parties don’t stand in the way of the mediator, and have some patience, the process can get the best numbers and, hopefully, settle the case. In the end, mediation really is like making a soufflé, i.e., you have to have the right ingredients, mix them all up properly, and not take it out of the oven too soon – or it will collapse.