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Mediation Tips - Setting up the Mediation
Let the ADR Provider Convene the Mediation
You and most of your opponent(s) and/or co-defendant(s) have agreed to mediate. Now comes the hard part; selecting the mediator, scheduling the date and bringing the last party to the table.
Your ADR provider (e.g. ADR Services) can do all the rest of the work. They consult with the lawyers developing a consensus on which mediator will be best for the case. At the same time available dates are cleared. Finally, the sensitive task of rounding up the last party is best left to the neutral ADR provider, whose only agenda is to provide good service. This neutrality plus the momentum of the convening process usually brings in the last party.
Interview the Mediator
Before retaining a mediator and/or attending the mediation, consider calling the mediator and discussing the following subjects:
Mediators are in the service business and are happy to speak with you before or after a mediation.
Let the Other Side Pick the Mediator
Once there’s an agreement to mediate, wrangling over mediator selection can be counter-productive. Unless the other side’s choice is unacceptable, go with their pick. Because the other side respects their choice and will listen to their selected mediator, you have a higher probability of settling the case. Even if the mediator is ineffective, not neutral or just plain wrong for the case, you will have learned what the other side considers its strengths and your weaknesses. Then you can adjust strategy, tactics and approach accordingly.
Your favorite mediator is unavailable, what next? How do you find the next best choice? Ask…..
Parkinson’s Law – Mediation Scheduling
Parkinson’s Law states: “Work expands to fit time available for completion.” Its reciprocal, “work will contract to fit time available” is also true.
A mediation scheduled to go all day, probably will. Conversely, setting a case for a half-day tends to encourage the efficient use of time. When setting a mediation, allow sufficient time to:
Scheduling the 2+ Day Mediation
A mediation is set for 2 or more days because the case is complex factually and/or legally, the damages are substantial or it has multiple parties or some combination of the above.
Best practice is to conduct pre-mediation conferences with the mediator to determine the necessary participants, issue order, presentation order, time allocation and scheduling. That way information is shared in a structured and efficient manner and no one’s time is wasted participating in a session that does not concern them.
Now that mediation is part of the litigator’s tool box, we tend to focus on case resolution and forget that even if a case does not settle we can capture value in four areas.
When to Mediate?
In a perfect world, you mediate when the other side’s risk is the highest, e.g.
Will the Mediation be Successful?
Before investing in a mediation’s time and expense, agree with the other side to do the following:
If the mediation is not going to be productive, continue it and gather/exchange the necessary information.
Schedule the Mediation Day
Every trial lawyer has a horror story about running out of time at a mediation or a mediating a case until the wee hours of the morning. Sometimes that is just what has to happen for that particular case, but more often than not, the problem is caused by the failure to set a schedule at the start of the mediation. Scheduling time for specific events creates the expectation that the mediation will be completed on time with a successful outcome. During the day, the parties and the mediator can check their progress against the schedule and adjust accordingly. Below is working schedule for an all day mediation.
9:00: Meet and greet parties – Plan mediation schedule.
Noon: Rolling lunch break, one side works with mediator.
3:00: Deal taking shape, final negotiation, working on deal points.
Pre-condition the Mediator
Many lawyers forget that mediation differs from trial and arbitration in that ex parte communication with the mediator is the norm. Effective mediation advocacy includes pre-conditioning the mediator to your point of view through ex-parte communication.
Prior to the mediation, call or email the mediator with the goals of assuring mediator preparation, insuring process credibility and establishing rapport. Assure mediator preparation by asking if he has the brief and volunteering to answer questions. Insure process credibility by discussing how to effectively use or not use a joint session and enquiring about the mediator’s style. Establish rapport by alerting the mediator to difficult issues or people and brainstorm appropriate approaches.
During the mediation your ex-parte communications take place in private caucus sessions. Here you are selling your case, minimizing your weaknesses, searching for information and clues from or about the other side and managing the settlement negotiation. All are best done with a friendly, professional and candid demeanor, designed to obtain the maximum benefit from the mediation in either a settlement or useful information.
Try the New Person
When your case does not justify your favorite mediator's fee or your favorite mediator is unavailable, try the new person. Every ADR provider has new people that need a "try out" assignment to meet clients and earn their confidence. Below are suggestions that minimize the process and professional risks associated with lesser known mediators.
NB: For best success, all of the above should be done collaboratively with opposing counsel.
Make a Feasibility Call
How many times have you been at a mediation and asked, "What are we doing here?" Followed by the comment, "They asked us to be here and this is the demand/offer we get?" Mismatched expectations are all too common. The solution is to make a "feasibility call" before you set up the mediation. Below are discussion subjects to help make sure you and your adversary are at least in the same ball park before devoting the resources, time and treasure, necessary for mediation.