How do you work with a mediator or third-party neutral?

A "successful" mediation is not always one that results in an agreement that day. I've had some mediations where that session did not result in a settlement, but in which the exercise helped narrow a gap between the parties, or led to clarification of an issue that, a bit later, allowed the parties to resolve a case on agreeable terms. But as with any negotiation (and mediation is negotiation-by-other-means) the most important thing is often to know when to walk away, and have the mindset and client preparation (and earned client trust) that will allow you to walk away when appropriate.

Mediation is an incredibly valuable resource in divorce and family law conflict. Whereas litigation is in a public settling and a party has little control of the outcome, mediation is private and confidential. Parties have the opportunity to be creative and craft solutions that fit their family, which is especially significant given that each family is unique. Central to this concept is that the parties, not a judge who knows little about the case, come up with the terms that benefit them and their family most with the help of a third party neutral. With or without attorneys attending the session, mediation can a powerful tool that has been growing in popularity in the family law arena for good reason.

At it's most basic, a mediation is a negotiation which is facilitated by a neutral party - the mediator. The mediator helps the party manage the process of the negotiation and manages high emotions that can arise. The mediator needs to be highly skilled in negotiation so that they can assist the parties in negotiating through stalemates and other challenges that arise.

Mediation is a proven process to help people resolve conflict, with much lower costs and higher rates of satisfaction for the participants than litigation. The mediator - who is independent and impartial - respectfully and empathetically listens to the people who are in conflict, then supports them with a process to negotiate to an agreement.

Our firm handles long term disability insurance disputes, and having a mediator with subject-matter experience and knowledge goes a long way to taking fullest advantage of mediation to settle a dispute. In some cases where a mediator is selected by the court, the mediator may lack subject matter expertise which can pose a barrier to finding resolution because the mediator has limited credibility either with the Plaintiff or the Defendant, so wherever possible having a mediator with experience in the ins and outs of the particular practice area is crucial.

Mediation offers people an opportunity to actively listen to each other and work through differences in a safe and confidential space. Matters are resolved in collaborative and self-determinative process. Mediation strives to preserve or even improve relationships, something not available in adjudicative processes, where there are winners and losers. In mediation, resolution is something which the parties agree between themselves, and because of this, the issue is much less likely to resurface.

Mediation when used in good faith can provide sustainable solutions to conflict. Skilled mediators can help individuals put difficult situations behind them and move forward with predictability.

Mediation allows the spouses/parents the opportunity to control their outcome. Each spouse has a voice in the process and can communicate openly without fear of their words/thoughts/ideas being used against them. Instead, spouses can voice their goals and fears to assist them in creating a solution that works for them.

One of the best features of mediation is that it lets parties reach agreements on things that the tribunal deciding the case (usually a court but sometimes an administrative agency or arbitrator) would not be able to order. For example, it may be that a terminated employee was not a good fit for a particular role but could succeed in another role with the employer. Most wrongful termination litigation cannot result in restoration to a different position, even though that might be a good result for both sides.

The process can be expensive, both in the fees of the mediator and the expense of preparation and participation. The costs of litigation are exponentially higher (both emotionally and financially) and thus a mediated resolution is always preferable.

Recommendations are a great source to find a mediator. Ask your referral source how active the mediator was during the mediation. Also ask if the mediator has a specific mediation accreditation. Your mediator does not need to be an expert on either your industry or the specific laws but they need to be able to ask good questions about them. Sometimes you will find that a mediator from a different background will be better at coming up with creative solutions.

Ask around. The best mediators I have used with my litigator hat on, are those who have been recommended to me. Professional bodies are a place to start, but there is no substitute for a recommendation.

Industry reputation is key to sourcing and selection. Mediators who brow beat clients to agree, drive parties to persist long after business is usually done, disrespect the other party or bully a member of a legal team, and who make themselves the story, develop professional reputations that become natural barriers for consideration. Grimshaw Legal examines the breadth and depth of mediation experience and subject matter knowledge. We negotiate with counterparts to appoint the right person for what is a court ordered and expensive day. We’re mindful of the impact of an unsuccessful mediation and work with clients and the mediator to avoid a contested hearing with all that entails. We engage mediators who value their role in that context.

Finding a mediator is the easy but but finding the right mediator can be more difficult. Google searches for instance will lead you to the big companies or so called professional bodies. Independent mediators who aren't necessarily driven by profit will be further down the pages. Many offer 1st class service for a significantly lower rate because their overheads are less. Also look for Professional mediators not those who dual hat as lawyers.

One should enter into mediation with a positive and optimistic mindset, even if one is pessimistic based on past attempts at direct negotiation. Outline and write down your goals in order of importance, and consider areas where you can compromise. Recognizing all that can be gained through mediation with the assistance of a supportive, experienced professional third-party neutral, try to set aside past efforts to negotiate with the other party, clear your mind, take some slow deep breaths to calm yourself and get centered. Then, when in session, catch yourself when you feel you are becoming emotionally reactive, and take a deep, slow breath to stay focused and rational. You've now set yourself up for achieving your most important goals.

Make sure the prospective mediator understands their role as a service professional. They are not judges, they are not working for the lawyers, and they are not simply presiding over an alternative to litigation. They are providing expensive, specialized services for the parties who are paying their fees, including to act as an effective intermediary, develop and deliver messages, exchange information consistent with the parties' respective wishes and instructions, facilitate resolution if it is in both parties' interests, and to bring value to the process that the parties can't get without the mediator (i.e., creative settlement approaches). Too many mediators think that their job is simply to pressure the parties into a number.

I've written about this in articles, I lecture on it with lawyers at seminars, and, as a mediator, I talk about it with litigants during mediation. My role is not to settle your case. That is your role. My role is to help you talk about the issues that matter to you and help you communicate that information to the opposing party in a way that helps them understand why they should continue to work with you towards a mutually acceptable resolution. Time takes time and any mediator that comes in to pressure you towards a settlement amount is not doing anyone any favors.

Look for a qualified accredited mediator. The number of organisations accrediting mediators is vast and none is better than the other. What level qualification may be a factor but needn't be. Is your mediator experienced? - ask them. Once you've make a list chat to them. Go with those you get a decent feel for. Are they neutral, affordable, honest, ask for a testimonial if you aren't sure.

also it is important to have an empathetic mediator who understands the entire situation your party faces and if they decide to give up on an item they did not intend to how hard that is for them

Mediation is often more successful if parties identify "topics" for conversation or "issues" to discuss, rather than thinking about "claims" or "demands." Framing the conversation around neutral words often helps people think creatively as opposed to repeating litigation positions.

A thorough compilation of party interests and risks, assessment of values of each , $ or %, for all parties in the dispute will open eyes to a realistic assessment of the parameters within which the negotiation should take place. A decision tree using these numbers will serve parties well.

Preparation is essential. Mediation is a great opportunity for a lawyer to show to a client that they are thoroughly knowledgeable about their client's case. Some attorneys lose sight of that chance to shine.

Make sure your mediator is aware of any road blocks to a potential settlement and how the mediator can or cannot assist in addressing them. Good mediators can assist with client control issues, difficult counsel (including holding up a "mirror" to counsel who may have overvalued/undervalued their cases, and post settlement issues.

I like to have some specific examples of jury verdicts in the same location. You can use these to help explain downsides to your client before mediation. At mediation you can tell the other side you really can never predict what a group of strangers on a jury will do.

The worst way to enter into a mediation is to be in "combative mode". Listen, be respectful, be patient, be firm to get your point across, but never aggressive. Go with an open mind. Know what your bottom line is.

Take advantage of the privileged nature of mediations. I have found that some of the best personal injury/medical practice mediations that I have conducted/participated came after the defendant apologized for any issues they may have caused. That can reduce the anger and open a pathway for resolution.

I agree but have found in many cases in a personal relationship between parties emotions take over and mediation devolves and the exchange becomes to hard to handle

One thing I've found helpful is to begin the mediation process with a smaller less contentious issue that the parties are more likely to compromise on. This gives the whole process more credibility once one item is resolved. Plus, progress breeds hope that it's possible to reach the finish line.

I believe in a joint opening session and in person mediation. You can get a sense of the parties. How does your client react to seeing the other side and vice-versa.

Only the attorneys win and clients loose with protracted litigation. Especially, when kids are involved. Resolution should be priority even if takes counseling to get there. Clients should be encouraged to see the benefit of compromise which can be challenging when emotions are high.

Mediation is a complicated process. Family law mediations are much different than personal injury mediations. But in either case, your attorney should know in advance where the client needs to be at mediation's end. Mediation is not a fact finding process and if your attorney is doing his or her job, there will be nothing new learned at mediation. By then, your lawyer should know the case top to bottom. He or she should be prepared to counter each key issue that is central to the other side's position with fact and if possible demonstrative evidence. Mediation is a battle- just not the battle you expect. After you 'win' the 'our facts are better than yours' first half, then you can start to negotiate....

One of my bugbears is when family lawyers do not encourage their clients to attempt mediation. Instead, they engage in protracted negotiations using their client as cash cows. I always encourage clients to try mediation first which I think is morally the right thing to do.

Remember this is like a court date for your client. They may need all day to reach a point you started at. They may need to see you advocate the case to the mediator so they know you "feel" them.