I tend to be a “half-empty” kind of gal henceforth my most popular blog entry to date…Top 10 Ways to Botch a Mediation. In hindsight, I feel bad about that blog. Did it need to be so negative, so sarcastic? Is that what subscribers, readers and fellow bloggers really want and find entertaining? Isn’t there enough negative in the world right now? Why not put a more positive spin on what I have happily chosen for a career? Well, here is my best effort…my recipe for a successful mediation.
1 part: The right mediator
Don’t just blindly schedule your “go-to” person. Spend some time thinking about your client and your case. What type of personality and mediation style will best fit?
1 part: Preparation of the mediator
Brief the mediator in detail (in confidence of course) regarding your case. This can happen over the phone or with a written case summary. By whatever method, just do it. Many litigators are skipping this step in the current economic climate to avoid “wasting” the client’s money. I submit to you that preparing your neutral is far from a waste. Preparing your mediator allows him or her to hit the ground running on mediation day and serves to significantly reduce the time he or she must spend getting “up to speed.”
1 part: Preparation of your client
Schedule a pre-mediation meeting with your client and for all you procrastinators out there, this does not mean on the morning of the mediation. Bring your client into your office several days before the mediation. Explain what the typical mediation looks like and that it is not a formal affair. Calm their nerves. Settle them in for a long, trying day. Take them through your expenditures to date. Take them through the costs of discovery and trial yet to be incurred. Seek their input and their motivating factors. Discuss numbers with them; discuss possible resolutions with them; and, discuss reality with them. Give them your best judgment of success at trial based upon your experience.
2 parts: Preparation of your case
Go to the effort to prepare a power point presentation. Like it or not – it certainly is impressive. It may not make an impact on the opposing counsel who has seen the dog and pony show a zillion times but it will have a significant effect on the client who in many cases has never seen a power point presentation at all. Please don’t just drone on and read from your notes. Look the other party in the eye – this is the time for the impassioned you , the opening-statement you to make an appearance. Be present and be impressive. This is why they pay you the big bucks.
A splash of: Planning ahead
Inevitably mediations run longer than anticipated even when or perhaps especially when things are going well. This means that the parties are still talking and are still bringing new ideas to the table. Don’t plan on picking your child up at school at noon. Don’t tell your client they will be able to make that afternoon doctor’s appointment. You and your client should make plans to stay the day to give the mediation process a fighting chance.
A dash: Compassion
I tell my children to “use your listening ears and your gentle hands.” The same advice is appropriate at a mediation. Don’t come to mediation on a mission to hunt and destroy. Try to do no damage to the relationships at the mediation which may come back to bite you at trial.
A heaping tablespoon: Humor
I never leave home without this.