Bar News - October 14, 2011
Alternative Dispute Resolution: Getting the Most from Your Mediation Session
By: Carol Hess
One of the most common things I hear when I am mediating a case is: "Carol, do your magic." I like to think of myself as having special powers, but the truth is, as in everything else with law, good preparation by the parties is the key to success in mediation.
When is the right time to mediate a case? Thatís the first thing to consider.
Understanding the particular needs of your client can be important in assessing the timing of the mediation. For some people, resolution of a dispute or settlement of a case is more important than the exact nature of the amount or terms of settlement. On the other hand, rushing a client to settlement might result in a settlement that does not take into account all relevant factors.
If the case has the potential for high conflict, but the parties need to maintain an ongoing relationship, it makes sense to consider an early mediation. Once litigation has begun and the discovery process is underway, it is easy for parties to attribute bad motives to the other side based on litigation tactics that lawyers deem necessary to properly prepare their case.
An early mediation can reduce the suspicion between the parties and allow them to find the areas of agreement and thus focus on finding solutions to the areas of disagreement. Even if an early mediation does not fully settle a case, it might show the parties what more they need to learn. Then parties can come back to the table for a full resolution without having to engage in protracted discovery. A mediation that is scheduled early also has the advantage of saving legal fees, thus giving the parties more flexibility in settling their case.
Some cases require full discovery before a mediation can be attempted. In a case where there are complex issues of fact or ongoing medical treatment, it may be important for each side to fully understand the strengths and weakness of their case as well as that of their opponents before a meaningful conversation about settlement can be undertaken. Appreciating the risks in your case is as important as understanding the strengths.
Even though the mediator will explain the mediation process at the beginning of the session, many clients are simply too overwhelmed to really hear what the mediator is saying. Surprised people act badly: your client needs to understand that the opposing side expects that there will be movement in position at the mediation session and, depending on the positions of the parties going into the session, the movement is not always symmetrical.
Clients need to be coached to listen carefully to the other sideís point of view. While they do not have to agree with a position, they need to understand it. Listening with an open mind is not a natural skill for most of us. A failure to understand the other sideís strengths is the most common cause for a failed mediation.
Clients should be told that their demeanor and presentation can be very influential in mediation. How an opposing party will present as a witness at trial can be a very important factor in determining the settlement value of that case.
By the time you get to a mediation session, you should fully understand the strengths and weaknesses of your case as they are known at that point in the mediation. You should be aware of the potential implications of unknown facts and how they might strengthen or weaken your case going forward. You need to be able to make real to the mediator, and more importantly, to the other side, how a jury or fact-finder will see your client if this matter goes forward.
For example, if your client has been injured and is no longer able to be a master gardener, pictures of his or her garden in the time period immediately before the accident could be a helpful tool of influence at the mediation.
Your mediation summary should include a concise recitation of the facts, a summary of special damages and any pictures or diagrams that will help place the dispute in a context.
If there is novel law that will be decided in the case, an analysis of the law can be helpful. Likewise, if there are any recent changes in the case law or statutes that have occurred, it would be good to reference those as well.
You should have contacted any entity, such as a lien holder, in advance of the mediation session to make sure that you have all the information necessary to make an informed decision of whether to settle.
During the Mediation Session
At any mediation session you are walking a tightrope of demonstrating confidence in your case and honest assessment of its weaknesses. It is not a good idea to come into a mediation session with a fixed idea of how your case needs to settle. It is a good idea to be ready to participate in coming up with ideas of how to settle the case that would work for your client and be able to demonstrate why they should work for the other side as well. Being able to understand the other sideís interests can often help generate options for settlement.
A good mediator will be open to your suggestions of how to move things forward while maintaining objectivity and a sense of fairness to both sides. If a mediator senses that you do not understand your case or are not prepared to try it, it is difficult for the mediator to promote the strengths of your case to the other side. The mediatorís job is to help the other side experience an increased awareness of the risks of not settling its case. The more that you can assist the mediator in articulating that risk the better outcome you will achieve for your client.
A principal at Hess Gehris Solutions in Bow, Carol Hess has extensive experience as a litigator and now works as a full-time mediator. In addition to mediation, Carol helps organizations and individuals manage and resolve conflict.