Nine Fine Dry Mediation Whines

1.”Aren’t we there yet?” How much longer? We’re never going to get there! My tummy hurts! Can I go home now? This mediation stinks!”

Rule #1: Patience.

You’ve been litigating the case for years. You’ve had twenty contentious depositions and five motions for sanctions. Positions have been taken and bad feelings have been building. Why would you expect all that to change in an instant? It takes time to turn a big ship around. Be patient. Everyone made a huge commitment to be there. Give it a full chance to work.

Remember, one hour of mediation time is equivalent to at least ten hours of litigation time. Mediation time feels slow but it is usually much more productive than all the time you’re going to spend if you don’t get a deal.

2.”It’s not fair. He started it by refusing to move! Why should I move if he won’t?”

Rule #2. Personally, don’t take it (all the rules begin with “P”)

Don’t be offended. You’re trying. They’re trying . You each have different visions of the case. Ultimately you both want the same thing. Ask yourself what they are saying with their moves. Do not give up.

Another related gripe is, “They only moved ten per cent so I will too.”

This always shows lack of focus on the goal. Instead of looking back, think only about how to get to where you really want to be. What move do you need to make to get to a realistically successful result?

3.”Why should I tell you? You’re not my friend. You’re not a judge anymore. You’re not the boss of me. You’re on their side. Everybody’s against me.”

Rule #3. Place trust in your mediator. You’re not likely to get what you want if you don’t let anyone know what you want. Sometimes people wait until 4:59. It can be so much easier and more efficient if you help your mediator understand what you’re trying to accomplish.

4. “I dunno. Nobody said that was going to be on the test.”

Rule #4. Prepare and plan. As I’ve written before, litigation, like war, is said to be simply negotiation by other means. For us, litigation is a tool of mediation which begins the moment the claim is filed. Nearly all of the cases end up settling sometime.

You’ve been planning for trial but you also have to be planning for settlement. Make a great settlement plan. Do a powerful submission. Come loaded for bear. Have the right people there or available. Know everything necessary to be able to settle the case. You should have a pretty good idea of what the other side needs—get it. And if you don’t know, call your opponents in advance and ask them what more they need. Ask for a pre-mediation phone conference with your mediator. Don’t come in and say you don’t know some fact crucial to getting you what you want.

5.”It wasn’t me! Johnny did it!”

Rule # 5. Protect your credibility at all costs.

Admit what must be admitted. The power of doing that cannot be overstated. Admitting what you cannot disprove makes you a professional. It gives you instant credibility when you address the points you do contest. People listen. Fighting what’s obvious is not only an enormous waste of time, it makes everything else you say sound silly.

6. “I take it all back!

Rule # 6. Perform. Reneging on an offer or a demand or even a strong indication that you will do something is a certain hazard. Wow! Why should anyone ever try to make a deal with you if they can’t trust what you say? Sometimes things do change but if you cannot perform what you said you would, there had better be a darn good explanation and no matter how good it is, expect strong resistance.

7.”Na na, na na! I can’t hear you!

Rule # 7. Prepare to learn. This is the complete opposite of trial mode.

Always come to the mediation ready to listen and learn. How else are you going to find out what your opponent is telling you? How else are you going to find out what they need to get you what you want? At the very least, look at it as a golden opportunity to find any big holes in your case and fix them before it’s too late.

Bringing an associate is really helpful. Someone else is certain to hear and see things you miss.

8.”Now what am I supposed to do?

Rule # 8. Plan B. Never go into a mediation without a plan for what will happen if you don’t get a deal. When is the next settlement opportunity? Is it another deposition? Is it a document production? An expert report? Never go in without knowing your BATNA (Best Alternative To a Negotiated Agreement), which for us is usually further preparation leading to trial. Will further preparation drive your settlement value up? Are there risks to more discovery? If you have to go to trial, what are the upsides and downsides? What are your risks? What can you do to improve your BATNA or devalue theirs?

9.”Go make Jimmy give me my ball!”

Rule # 9. Power. Settlement power comes from you. It comes from how you set up the case. How you prepared. How you developed the case—all before you walked into the mediation. The mediator cannot make your opponent give you what you want. Mediators need you to provide them the ammunition to get you what you want.

MORAL

Mediation can be emotional and stressful as we try to bring years of conflict to an end. No matter how grown-up we try to be. Just recognize that and try to keep the focus on your objective. So there!