In my many years of experience with mediation, I have learned more than a few vital pieces of information. I hope to share many of them over time, through this blog. Having come right out of a recent mediation, however, I must share five invaluable things you should never forget when heading into a mediation:
1. Don’t forget that the mediator is simply expressing a point of view, without hearing all the evidence, and will carry their life biases with them into the mediation. Once in a film industry case, I heard the mediator suggest that my clients should settle for $75,000 when they had lost millions. He was steadfast and pushy, and touted his industry experience. My clients began to lose faith in their case and almost caved in. Instead, they went to trial and won $17 million, including punitive damages. The point here is that you should pick an experienced mediator, and listen to them…but only to a point.
2. Research your mediator well before agreeing to using them. Mediators come in all shapes and sizes. Some scream. Some tell war stories. Some are calm. Some manipulate both sides. Some are bullies. Some are ineffective, but nice. Others are very good at what they do. If you pick the wrong mediator, things can quickly go from bad to worse. Make a lot of calls to parties who have used the mediator. Take the time to hear all different points of view; Google the mediator to see if you can find posts about them. Do your due diligence, and be as knowledgeable about the mediator as you can, going in.
3. Remember that the case can still settle after the mediation. I can’t count the number of times that the other side told me and my client that they were making a “take it or leave it, best offer” toward the end of the mediation, only to watch them absorb the events of the mediation in the following days and make a higher – sometimes much higher – offer a few days or weeks after the mediation. A case can settle at any time, not just in the presence of the mediator.
4. Bring a rough draft of a settlement agreement to the mediation. If things move fast, and the parties settle, you can run into one of two problems if you do not come prepared with a draft settlement agreement. The first problem is that the parties may reach a settlement and agree to have the lawyers document the settlement in the following days, only to have the settlement break down in the drafting. The other problem is that the mediator may try to type out some rough version of a settlement on the spot, often advancing a document that could give rise to future problems because its drafting was rushed.
5. Diligently take notes and listen well. If nothing else, mediation is free discovery. Too many lawyers and clients advocate their position to the mediator, then immediately jump on cell phones during the breaks while the mediator confers with the other side. The mediator hops back and forth between the parties, bringing with them important information in the form of financial figures, names of witnesses, key data and even documents you may not have previously seen. Stay alert and take copious notes. If the case does not settle, you will want to remember what was revealed to you.
Mediation is still a slippery process, with loose rules of protocol. Many lawyers and clients don’t really understand how to prepare to optimize the process. The American Bar Association, Section of Dispute Resolution published a book that I highly recommend reading before your next mediation: Stories Mediators Tell. Mediators are their own breed, and they all attend workshops and classes on how to manipulate parties toward a settlement point. They probe for where weaknesses are, often not necessarily in the case itself, but in the parties’ resolve. Too many clients and lawyers walk into mediation without a strong game plan for how to make the mediator work for them, and for how to master the process. I always recommend being as prepared as you can be, and these five things to keep in mind are a good place to start with regard to preparing for mediation.