Mike’s Formula for a Successful Mediation

Attorneys should have their legal position fully researched and their trial strategy established before going to mediation.  Have your experts on board and their reports in hand whenever possible.  The best attorneys bargain from a position of strength because they are routinely ready to try their case, and this always projects to the opposing party.  Make sure all parties have or can get authority to settle the case at the time of the mediation.  

The mediator should honestly and sincerely earn the confidence of each party.  Each party must know that whatever is discussed during the caucus will absolutely remain confidential, unless he or she authorizes the mediator to share information.  The mediator should remain neutral and nonjudgmental. While clients unfamiliar with the process frequently want to take up time venting, the mediator should keep the session focused in a professional manner.  

The mediator is not there to pass judgment.  The best way to get parties to take a hard look at their risk is to engage both the party and their attorney to objectively walk through the next steps and their costs if the case does not settle.  

Attorneys should formulate their general negotiation strategy with their clients in advance.  Think of the mediator as a facilitator, not a problem solver.  It is a good practice to “keep the mediator’s mind pure” by asking him to step out of the room while the attorney and client confer in private to formulate their next offer or counteroffer.  Load the mediator up with your next offer and get him back to the other room.  The more time the mediator spends in the opposing party’s room, the more he is working for your cause.   

Emotions are part of the human experience.  Clients should try to put their personal animosity aside and remain focused on areas of compromise, where a flexible approach may evoke compromise from the opposing party.    

Parties should focus on their needs without excessively speculating about what is going on the head of the other party.  Naturally, fulfilling some specialized want or need of the opposing party may result in a settlement; however excessive speculating about how the other side feels about your offer should not guide your strategy.

Requests for nondisclosure, apologies, nondisparagement, noncompete, hold harmless, payment plans and the like should be carefully considered and revealed early in the mediation so they do not come as a surprise late in the day, potentially derailing a settlement.  Clients should take a hard look whether they want these things badly enough for them to make them “deal killers.”  

It is okay for parties to think in terms of their “target range” for a possible settlement, but “bottom lines” and “drop dead” numbers should be avoided, except as a last resort.

Both sides came to find a deal.  Put the ego and emotions aside, listen to the other side and be honest in your replies.  The mediator should spend considerable time discussing the relative risks and merits of each side’s position before running numbers back and forth.  If the case is not ripe for settlement because the parties need to conduct more discovery or investigations, then adjourn until the parties are ready to seriously negotiate.  Some large construction defect cases do not settle until the third or fourth mediation.  However, while studies have shown that 80-90% of cases settle in mediation, it is unavoidable that some cases need to be tried.  If a case is not going to settle, the mediator should not undermine either side’s position by unnecessarily telegraphing what he thinks about a party’s possible bottom line if he cannot get both sides into a realistic range.     

If the parties have agreed to a settlement, make sure it is memorialized in a written agreement.  The settlement agreement should contain the basic terms of the deal and it should be signed by the parties.  It should contain as much detail as possible, but can provide that the parties will later sign more detailed documents such as releases, court orders, standard form contracts and the like.