Often when parties to a litigation have spent some time conducting discovery and distilling each other’s position in a lawsuit, they come together for a non-binding mediation process. That process, while seemingly simple, can involve many intricate matters to navigate within the mediation itself. After all, the case has its facts, law and issues, but mediation is also about the people involved in the mediation. The circumstances, the personalities, how participants communicate throughout the process and make efforts to strike a deal all count as factors in both a successful mediation and one where a settlement might not be reached.
While the parties always try to “pick a good mediator,” they actually have to understand the role of the mediator. What are mediators trying to do and do they all approach mediation the same way? Some are facilitative, some are transformative and some are fluid like changing their form to fit the need of the mediating parties. A good mediator will accelerate communication, help identify all interests, recognize and validate certain emotions, values, perceptions and principles of the parties and also assist with exploring alternatives and options to proposals.
The parties also need to know how to properly use the mediator. Naturally, it is important to be friendly and respectful (the mediator is often a former or current judge). The mediator can help a difficult client understand the weaknesses of their case as well as talk sense to the other party if their position is too fixated. A mediator can help to deliver bad news or sensitive information that might pertain to the case or deal with confidentiality problems. The mediator can also temper reactive devaluation—that is when a party has too strong a response to the other party’s allegations. However, you cannot expect the mediator to “seal the deal.” The mediator is there to support the deal being made, but it is ultimately up to the parties. It is important to maintain tone and atmosphere that is conducive to productive discussion. The parties and the mediator can design the setting and the agenda with how information and issues are disclosed, whether joint sessions or private caucuses are necessary and when and how often to take breaks.
The parties need to make good use of their time and resources in the build up to the mediation. There may be pre and post mediation calls jointly or privately with the mediator for scheduling or even substantive discussion. The parties need to do their homework. Preparation between counsel and client, research about the mediator, and mapping out the possibilities and ranges of where a deal may be reached (but also not necessarily being wedded to it) have to be known and studied before the mediation. Preparing well for mediation means having a plan and strategy. Gather all the information available in the case up to that point and oftentimes a pre-mediation statement is required which can include pertinent facts, legal analysis, party dynamics, procedural and settlement history, proposals for resolution and the annexing of key documents as exhibits.
At the mediation, make sure the proper parties are at the table. Have participants available by phone if necessary. Sometimes the dynamic requires the actual parties to both be present or for attorneys to match up. Occasionally, it may benefit from having dueling experts to appear and weigh in. While having private caucuses can be helpful, do not avoid joint sessions. The mediator needs to let the parties know that they are essentially “all in this together.”
A good tone is, of course, set from the beginning. There needs to be a welcoming dialogue with the intention to act in good faith for potential peacemaking. At the same time, earnest inquiry and firmness of one’s potencies in the case must also be projected. Again, the parties should be attentive in using the mediator to reach an accord but without completely compromising their case. The mediator should be sensitive to timing, impact on the parties, management of expectations, framing issues and messages and the ultimate end game.
How can the parties be balanced effective negotiators during the mediation? The activity is truly about problem solving which requires cooperation, examining mutual gains, separating people from the problem and focusing on the actual interests toward resolution. This, of course, mandates that the best, worst and most likely scenarios that could occur, in lieu of a negotiated agreement, be discussed during negotiations to help create a useful framework.
Active listening is also critical to the process. This would include consistent body language, empathy, seeking clarification if necessary, solid feedback, and validating someone’s perspective even if different than your own. The only way good communication can be cultivated at mediation is to not be unduly resistant to providing information. Mediation is rarely the time to hold back for fear of disclosing information that a party thinks will work against them. The mediation should be used to learn as much about the case that you did not know before despite your preparation. Like any human interaction, body language, tone and attitude matter at a mediation because you are ostensibly asking the mediator and the other party to trust you. At least for the duration of the case, and possibly culminating at the mediation, you are essentially in a relationship with the participants and like any relationship worth nurturing, it demands trust, sincerity, good will and character and even humor, used appropriately. Ironically, even silence can have a power at mediation. It can show patience, willingness to collaborate, sincerity and an open mind—all signals that send a positive message.
If you have a mediation coming up in your case or just want to learn about the process and how it can help to resolve your legal matter, call the litigation attorneys at Maya Murphy, P.C. at (203) 221-3100.