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Bar News - October 18, 2017

Alternative Dispute Resolution: Five Tips to Increase Odds of Mediation Success


The tips below are drawn from my experience in mediations. The list is hardly exhaustive, but it speaks to the core of the mediation process. In my experience, employing these strategies helps increase the likelihood of achieving successful outcomes.

1. Prepare the Client for Compromise. Mediation does not work without compromise. A party should not expect to achieve total victory. Each side must listen to all the other sides, and be able to consider all the other positions. Mediation often involves a strong element of emotion, and it is difficult for parties to hear what they donít want to hear. Nonetheless, empathy is key. Success through mediation means that a compromise resolution of some sort has been achieved, with no one walking out feeling totally vindicated. The need to compromise certainly should inform the conduct of the lawyers. They should be firm and clear in taking positions, but avoid being too contentious. They should be courteous and work to further settlement possibilities. They should not avoid offering creative suggestions or solutions, but should do so with sensitivity and some expectation of rejection.

2. Key Participants Should Attend. Decision-makers should seek to be physically present at the mediation session or sessions. It is best to have insurance adjusters physically there, although they are often only accessible by telephone. I have found that insurance adjusters generally benefit from being physically present. They often gain better insight into the case, and are often able to establish better rapport with the other sides. I have also often found it helpful for a partyís spouse, or adult child, or parent, or trusted friend, to be physically present, both to provide moral support and to offer helpful assistance in working out a resolution. Indeed, sometimes a party needs the reassurance and comfort of a close relative or friend to decide how much to give up or how much to accept to resolve a controversy.

3. Prepare and Assist the Mediator. Having selected a good mediator for the case, each side should take the time to make sure that, as the process moves forward, the mediator gains a good understanding of the particular issues, with their difficulties and challenges, including those arising from Nilsson/DeBenedetto circumstances (that is, where a dispute involves some participants in the injury occurrence who would not be subject to suit or would not otherwise be before a court, or is a settling actor, but who would nonetheless figure in a fact finderís comparative fault percentage determinations to allocate responsibility for damages). To be effective, a mediator needs to appreciate the strengths and weaknesses of each sideís case. A mediation summary is very useful to educate the mediator. A lawyer should use the joint opening session, and the give-and-take later private sessions, to make sure the mediator understands his or her clientís side, and sees the weaknesses of the other position or positions. The lawyers should assist the mediator in the good use of negotiating approaches that are the most amenable to achieving resolution, including bracketing and the floating of a settlement number.

4. Manage Lien & Subrogation Issues. Settlement may not occur because a lien or subrogation issue has not been sufficiently addressed. These issues may sometimes be frustrating, involving at times the need to deal with difficult bureaucratic positions. However, the lawyers should address lien and subrogation issues so that they do not unnecessarily block a resolution. It is certainly best to delay a mediation until the lawyers are effectively able to proceed.

5. Patience Is Key. Prepare the client to be patient, to be willing to go through a process that may take some time, involve temporary roadblocks, require substantial give-and-take, and be very frustrating and anxiety-inducing. As a mediator, I often start by talking about the difficulties of the process. I encourage everyone to take deep breaths, to hang in there for so long as there is some prospect of succeeding. I take breaks when necessary; I talk of less difficult, perhaps non-economic matters if they exist; I do everything I can to foster a good problem-solving, settlement-oriented environment; and I remain optimistic that we will find some way of overcoming the obstacles and arrive at an acceptable resolution. In my introductory remarks when we are all together, I often say that mediation is like putting yourself in a dentistís chair: you go through short-term pain or discomfort, but you endure this because, in the end, you expect to obtain long-term relief Ė and most of the time you get this long-term relief.

John Lewis

John M. Lewis presently practices some law, teaches, and provides alternative dispute resolution services. He served as an associate justice of the NH Superior Court from 2001 into 2013.

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