If you want to know how to use the mediation process in the most effective way possible than these four tips by attorney Richard Shore are great starting points:
1. Let the other side pick the mediator.
Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time consuming, and adversarial. Avoid this opening skirmish by letting the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, and introduces you to new mediators you might actually like.Reserve your right to reject someone with an actual conflict, but don’t ding someone just because the other side believes the person is favorably disposed to them or their position. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. And such a mediator, wanting to avoid any perception of bias, may bend over backward to be fair to your side.Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like, so there is little risk to accepting a mediator proposed by the other side, and much to be gained.
2. Don’t argue about who is right.
Well, not as much as you—or your counsel—want to, anyway. The goal of mediation is not to win an argument; it is to achieve a favorable settlement. Some substantive exchange is appropriate and even useful, but scoring substantive points is at most a tactic. Don’t let it hijack the process.Usually by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating arguments can harden positions, antagonize the other side, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot. Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over substance later if the mediation fails.
3. Leave the litigators at home.
By default, litigators tend to handle both litigation and settlement responsibilities. Often it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation.
4. Deal with hard issues last.
It always amazes me when a mediator says, “Let’s get all the issues out on the table right up front.” If your goal is to create as many impediments to settlement as possible, that is just the right approach. If your goal is to settle, you are generally far better off focusing on a key issue—usually money—first and leaving the other, sometimes harder issues for later. Once there is agreement on the key term, the parties will tend to feel that they have a deal and that the remaining terms will be worked out in due course. This approach creates momentum rather than impediments.Indeed, it is often wise to leave key issues, or at least their final contours, to the drafting phase of a written agreement. Deals often fall apart over key substantive issues, but they generally don’t fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.
Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time consuming, and adversarial. Avoid this opening skirmish by letting the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, and introduces you to new mediators you might actually like.Reserve your right to reject someone with an actual conflict, but don’t ding someone just because the other side believes the person is favorably disposed to them or their position. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. And such a mediator, wanting to avoid any perception of bias, may bend over backward to be fair to your side.Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like, so there is little risk to accepting a mediator proposed by the other side, and much to be gained.
2. Don’t argue about who is right.
Well, not as much as you—or your counsel—want to, anyway. The goal of mediation is not to win an argument; it is to achieve a favorable settlement. Some substantive exchange is appropriate and even useful, but scoring substantive points is at most a tactic. Don’t let it hijack the process.Usually by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating arguments can harden positions, antagonize the other side, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot. Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over substance later if the mediation fails.
3. Leave the litigators at home.
By default, litigators tend to handle both litigation and settlement responsibilities. Often it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation.
4. Deal with hard issues last.
It always amazes me when a mediator says, “Let’s get all the issues out on the table right up front.” If your goal is to create as many impediments to settlement as possible, that is just the right approach. If your goal is to settle, you are generally far better off focusing on a key issue—usually money—first and leaving the other, sometimes harder issues for later. Once there is agreement on the key term, the parties will tend to feel that they have a deal and that the remaining terms will be worked out in due course. This approach creates momentum rather than impediments.Indeed, it is often wise to leave key issues, or at least their final contours, to the drafting phase of a written agreement. Deals often fall apart over key substantive issues, but they generally don’t fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.
