Let's Settle This Like Lawyers -- Mediation Tips to Maximize Success.

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Want to maximize the chances of resolving your client's case at your next mediation so no one has to resort to rock-paper-scissors, a coin toss, thumb wrestling or protracted, acrimonious litigation?  Here are 14 tried and true tips:  

1. THERE'S NO TIME LIKE THE PRESENT

Why wait to mediate? Mediating early when the costs and stakes are lower creates an incentive to settle. The timing of mediation often depends upon habit. However, with few exceptions, there is no reason why a mediation should not take place before formal proceedings are commenced, or at least immediately afterwards.

2. ‘SOUP IS THE MEAL’

What does a classic Seinfeld episode have to do with mediation? Everything. Instead of treating mediation like an appetizer before you get to the real meal (trial, a summary judgment motion, etc.), treat it, and prepare for it, as if it were the main course. The likelihood of court intervention is statistically low and the chances for successful resolution at mediation are high – if you prepare for it in earnest.

3. PREPARE YOUR CLIENT

Your client also needs to be prepared. She or he must know the “whys” and “whats” of mediation  beforehand so that their expectations are properly managed. If you would not want your client to arrive at court fully expecting to receive everything he or she has claimed in their pleading, why should it be any different at a mediation? Mediation is more productive if parties are introduced to the concept and value of settlement as early as your first meeting.  

4. ENSURE ALL DECISION MAKERS ARE PRESENT

While all parties to the dispute should be present, there may be others in the background who are essential to the decision making process and whose presence might ensure success: i.e., spouses, silent partners, other counsel or trusted advisors. Their absence may result in a wasted opportunity. Additionally, before you say "no" to the other side about attendance of their non-party decision makers or influencers, think about how it may actually benefit your client. Of course, non-parties should also sign the mediation agreement so they are bound by confidentiality.

5. DON’T GET LOST IN TRANSLATION

Treat the mediation as you would treat an examination for discovery or trial when it comes to language barriers. If one exists then you need to ensure that your client understands what is being said and that others (including the mediator) understand her or him. Unless you or the mediator are fully fluent in the client's language, don't take any chances. Bring a professional interpreter (and not the client's friend or family member, who may not be fully reliable).

6. THERE’S A REASON IT IS CALLED A “BRIEF”

Avoid a ‘kitchen sink’ approach to your mediation brief and just focus on the bare essentials in terms of a summary of facts, issues and the law — as well as the few key documents to be included. Less is usually more. Do you really expect (or need) the mediator to read the dozen authorities and two dozen non-essential documents you have included? You may be paying for that additional reading time (assuming there is time) and yet not deliver your message.  Remember your audience.

On the subject of briefs, remember the clients. Your clients need to read your (which is really their) brief prior to the mediation. They also should read, and understand, the other side’s brief. It's perfectly fine for them to hate what they read, but they need to understand the other side's case. Ignorance is never bliss when it comes to legal disputes.

7. BRING THE ENTIRE FILE

What keeps mediation interesting is that you never know what will come up. Therefore, try to have everything at your fingertips, whether in paper or electronic format (with the latter being preferable and usually lighter).  As well, if you are seeking costs (good luck with that, except in the appropriate case), a summary of your billable time and disbursements is essential to have on hand (i.e., PC Law ledger). To read more about recovering costs at mediation, click here.

8. STAY AWHILE

Make sure that you and all decision making participants are available for the whole day – even if you have only booked a half-day mediation. Every mediation has a life of its own. Sometimes momentum can suddenly build later than expected and the mediation goes into overtime. Having to rush off will just derail late-stage progress.

9. WHATEVER WORKS

Sometimes you just need to trust the process and listen to your mediator. If at some point he or she recommends a joint session, taking a break or a walk down the hall to cool off and think things over, or even something as out-of-the box like meeting with the parties without lawyers present (this is rare, but occasionally effective in the right case), then try to remain open-minded. There is usually little to lose and much to gain.

10. RESPOND, BUT DON’T REACT TO BAD NEWS

Do you believe the other side is being unreasonable and negotiating in bad faith? Fine. Welcome to mediation. However, before packing up and walking out, respond by adjusting your expectations and making the most of the day by not catastrophizing. Ask yourself: “is there something useful that can be accomplished today?” Usually, the answer is “yes”. It can often lead to the narrowing of issues, learning more about the other side's motivations or even a settlement in the near future.

11. KEEP TALKING

Similarly, when you reach an impasse, keeping the conversation going can lead to an unexpected breakthrough in the negotiations. Sometimes, just speaking to the other lawyer privately, with or without the mediator present, can lead to progress. It happens every day.

12. PESSIMISM PAYS

In my experience, people (lawyers included) are far too optimistic about their case's chances of success if they were to keep litigating instead of settling at mediation. This interferes with hard decision making.  Dr. Martin Seligman, author of the best-selling book Learned Optimism (2006, Vintage), who is a proponent of the value of being optimistic in most facets of life, suggests being pessimistic if planning for a risky and uncertain future. Given litigation’s inherent risks and costs, consider Seligman's advice in the privacy of caucus. The other side certainly does not need to know about your pessimism (but, they should be pessimistic about their own chances of success). To read more about the value of “learned pessimism” at mediation, click here.

13. MINUTES MATTER

Bring draft Minutes of Settlement (Settlement Agreement or Memorandum) and a Release with you so you save time and trouble if a deal in principle is reached. Documents in electronic form on a USB key or laptop are especially handy.

14. USE ‘MEDIATOR FOLLOW-UP’

Finally, if a settlement cannot be reached and the mediator offers to follow up later with the lawyers then say "yes". With proper attention and effort, many cases can settle in the days or weeks following mediation. I usually offer up to an hour of my time for free, post-mediation, to see if I can help move the parties to a settlement. Most lawyers and their clients readily accept and the success rate is generally high. Effective follow up can usually be achieved via telephone and email with the lawyers.

And there you have it: 14 simple tips that should serve you well. Have any tips of your own that you would like to share, or would you like to learn more about how I can help you at your next mediation as a mediator or settlement counsel? I would like to hear from you.

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On the subject of mediation, on June 7, 2016 I will be chairing a breakfast CPD for the Ontario Bar Association entitled Joint Sessions and Opening Statements in the Mediation of Civil Disputes. For more information, please click here. Whether you dislike joint sessions, or you think they should always be used, then this CPD is for you.