In serving as a neutral for over a decade, I offer these practice tips to help advocates pave the way to a successful mediation.
Contact in Advance
In some cases, the mediator may contact the parties in advance to determine who will be attending and also get the general thoughts of each party as to the posture of the case and the tenor of the relationship between the parties. Even if not, it is helpful to let the mediator know who will be attending the mediation with you. This assists the mediator in preparing the environment and ensuring that both parties are not surprised when they walk into the mediation.
In addition, a written position statement from each party is often helpful to both the parties and the mediator. These pre-mediation efforts can foster fruitful discussions and give the mediation a higher likelihood of success.
Be prepared to give a thoughtful opening. Keep your presentation focused on the salient facts and essential legal claims, and if possible, provide an olive branch to the other party. For example, respondent in an employment case can share that complainant was a valued employee in some regard. A statement to that effect may be helpful to opening the dialog.
It is usually best to avoid demands and responses in the opening statements, since they are often better handled during caucuses and conveyed by the mediator. It is also helpful to acknowledge in the opening that your client is participating in mediation in a good faith effort to find a resolution that works for both parties.
The mediator will likely emphasize that compromise will benefit both parties and express an understanding of the parties’ desire to avoid costs and energy involved in litigation. The mediator may also underscore the other benefits of a mediated agreement, including a quick and global resolution of the dispute and the fact that the parties retain control of the outcome through mediation. Emphasizing these benefits of mediation with your client can help build a bridge towards a resolution of the case.
Also, be prepared to present a very limited opening if the mediator so recommends. Sometimes, one party is not capable of being in the room for long with the other party or may become easily inflamed by statements in the other party’s opening. Maintaining flexibility is key to a successful mediation.
Discovery and Preparation
A plea: do not use the mediation for discovery. Come prepared to settle the case, if at all possible. Do the preparation and get the authorization necessary to make that possible.
Explore with your client all avenues of relief that might be palatable. In the employment context, this could include a positive reference, employee training, or alterations to a personnel file. Sometimes the focus on the financial component of a settlement overshadows those non-monetary aspects of settlement that might be particularly beneficial to some clients.
Try not to inflame your client – or the opposition – during the mediation. Work with the mediator to keep the parties calm and capable of fully participating in the mediation with clear heads. Occasionally an attorney will engage in litigation tactics that can create more of a barrier than a bridge to resolution.
Your Mediator is Neutral
Understand that the mediator may ask questions that seem challenging but are intended to help the parties thoroughly evaluate the strengths and weaknesses of their own, and the other side’s, case. It does not mean the mediator is drawing conclusions about who is right and who is wrong – the mediator knows well there are two sides to every story. But it does mean that the mediator is working hard to get you and your client to confront the realities of the other side’s position.
Mediators have different methods of practice regarding how evaluative to be. It is helpful to be clear when you want the mediator to be more evaluative to help your client move forward. The mediator is in a sense conducting his or her own negotiations with each party and advocates can assist by providing guidance, even if subtle, as to what their clients need to hear to fully evaluate various options for resolution.
Finally, be clear with your client, and the mediator if possible, as to how your fees will factor into any settlement under discussion. It is most helpful to mediators to understand from the initial demand or response the role that attorney fees will play. Sometimes, it may be necessary to review your fee and see if it is possible to reduce it in order to get a final resolution of a matter during a mediation.
Mediation is an extremely useful tool to help parties fashion an outcome to a problem that is likely stressful, costly, and time-consuming. Helping the mediator help your clients resolve such problems is a valuable service.
Rebekah Smith is the principal attorney at Seven Tree Solutions. She served at both the Maine Supreme Judicial Court and the U.S. Court of Appeals for the First Circuit as a judicial clerk before conducting a two-year Skadden Fellowship representing clients in the legislature and through impact litigation. Since 2005, Smith has maintained a practice as a mediator, arbitrator, independent outside investigator, and administrative law judge, presiding over hundreds of cases as a neutral.
This article is reprinted from the June 7, 2018 ADR Issue of Maine Lawyers Review.