In my opinion, the three essential qualities for an effective mediator are competence, creativity, and tenacity. The mediator has to understand the issues, which typically requires subject matter expertise in the law and an astute attention to factual details. The mediator also has to work creatively with parties and counsel to explore different avenues for reaching a deal. Finally, an effective mediator never gives up hope and continues to engage the parties in settlement discussions if the dispute is not resolved during the scheduled mediation session.
Beyond these fundamentals, it is a judgment call as to what kind of communication style is the best fit for the key decision maker at the mediation. The best mediators can adapt themselves to the personalities, emotions, and decision making style of the participants.
HOW DO I
SELECT A MEDIATOR
WHEN
SHOULD I
MEDIATE
This is a great question to ask at the very beginning of a dispute, and to continually evaluate along the way. Litigation is an incredibly inefficient way to acquire the critical information needed to make an informed decision about settlement. With the right approach and level of cooperation, parties can often learn enough through the mediation process to settle before they even get to court. I see this all the time in my mediation work for the Department of Fair Employment and Housing. In many instances, however, some formal discovery is needed to assess the strength of a claim or defense and sometimes a dispositive motion must be heard. Rarely do parties need to complete discovery or get to the eve of trial.
In my role as mediator, I assist parties who want to settle a case before attorneys’ fees have hemorrhaged out of control through protracted formal discovery. Through pre-mediation conferences, I help counsel to assess what critical information they still need from the other side, as well as their own, and I encourage the informal exchange of specified documents, often those relating to damages. If the parties are able to cooperate in this process, they have significantly increased the odds of reaching an early resolution.
Preparation is essential to a successful mediation. In addition to identifying and filling any critical informational holes, as discussed above, I recommend the following:
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Arrange for the real decision makers to attend the mediation. They will be much more likely to make the tough calls if they have personally experienced the arc of negotiations, the impact of new revelations, the emotional dynamics, and other intangibles that cannot be conveyed in periodic telephone calls.
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Evaluate whether attendance by percipient witnesses can favorably influence the mediator and/or other side. Where credibility is key and the witness is likely to make a good impression, do not underestimate the positive impact it can have on the negotiations. Percipient witnesses who should not be part of the direct negotiations can simply leave after the information-gathering phase.
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Prepare a mediation brief that can be shared with the other side. Unless you are confident the other side already fully understands the legal and factual position you want to put forward at the mediation, you are best served by educating them beforehand, and vice versa. Some information simply cannot be adequately absorbed on the day of mediation. It may be too complex or require further investigation in order to assess its relevance and impact. Whatever information you want to share only with the mediator can be sent in a separate email or brief.
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Have a frank discussion with your client about the costs of litigation if you don’t settle. If you do an up-to-date assessment of litigation costs through trial and discuss it with your clients before the day of mediation, they will be much better positioned to engage in a reasoned cost benefit analysis during the negotiations.
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Explore with your client the possible benefits of a joint session at some point during the mediation where the parties have an opportunity to speak directly with each other. Substantive joint sessions are disappearing in the California mediation culture but they are still alive and well in other parts of the country and highly successful mediators swear by them. My suggestion is to consider whether meeting with the other side under the guidance of a skilled mediator might allow for some communication breakthroughs. This can be done at the beginning or at any point during the day where it makes sense. Your client may be more receptive if you have discussed the possibility in advance and given him/her guidelines and an opportunity to prepare.
HOW SHOULD I PREPARE FOR MEDIATION
WHAT IS THE
MOST
EFFECTIVE
ROLE OF
COUNSEL AT
MEDIATION
In my judgment, if the goal is settlement, counsel are most effective if they understand that communication should be very different in a mediation as compared to court. In mediation, the goal is to create workable solutions, not to win. Therefore, communication should be geared to learn rather than to debate, and to listen rather to find flaws and develop arguments. With that approach, counsel can convey the strengths of their position while remaining open to adjust their expectations and creatively explore solutions.
I pick up the phone a few days later after parties and counsel have had an opportunity to digest what happened. I continue to mediate telephonically or via another session, as participants see fit. For as long as I see an opportunity for resolution, I stubbornly pursue it.
WHAT IF MY
DISPUTE
DOESN'T
SETTLE AT
MEDIATION
