Part Two: Ten Tips to a Successful Mediation: From the Mediator's Perspective
Labor & Employment Newsletter
In part one of my article, I discussed five tips you should follow prior to the mediation conference to best achieve a successful result. I will now discuss five more tips you should use at the mediation conference which will hopefully lead to a successful mediation.
1. Showing Up on Time
While this simple rule seems easy in theory, it is often ignored and sometimes abused in practice. When one side shows up to a mediation 10 to 20 minutes late, while the other side has been patiently waiting to start, it sets a bad tone to the mediation. The waiting side feels, and is often justified, that the other side does not care about the mediation or the other’s time. As a mediator, I have to spend the first few minutes, which are often the most critical minutes of a mediation, calming everyone down because of something that could have been easily avoided.
I am reminded of a mediation that I recently handled. The issue in the case centered around whether the former employee was terminated because of his age or for his habitual tardiness. The employer, the attorney and the employee’s attorney all showed up for the mediation on time. The former employee was about 20 minutes late (“just like he did at work” commented the defendant employer). Not surprisingly, the defendant and his attorney were mad, the former employee’s attorney was embarrassed, and the case settled for less than the former employee wanted or possibly could have settled for – solely because of his tardiness at the mediation, from my observation.
2. Show Respect for the Other Side and Their Attorney
I have two big pet peeves when it comes to mediation. The first is when a party or the attorney will not shake the hands of the other party or attorney at the beginning of the mediation. Such a hostile introduction sets the entire mood of the mediation process. When the parties cannot even shake each other’s hand as a showing of decency and professionalism, as a mediator, I am already discouraged and concerned that the mediation will probably end unsuccessfully.
I am reminded of a story about a mediation I conducted for a client of mine who flew in from New York. At the conclusion of the mediation, he told me he would have paid the plaintiff $10,000 more if he had simply shaken his hand at the start of the mediation. My client, who was the CEO of a Fortune 500 company, had to fly in from New York to attend the mediation in person and thought that the employee, who lived just across town, could have at least given him the respect of shaking his hand.
My other pet peeve is when either I or another attorney is speaking and the other party or attorney shows absolutely no interest in what is being said by either reading the newspaper, a magazine, looking out the window, sending text messages or, worse, making faces. I know when this happens that I feel disrespected, and I am confident that the opposing attorney and client feel even more so.
If the parties and their attorneys are truly interested in a successful mediation, it is imperative that they set the right tone at the beginning of the mediation process. They need to begin the mediation by expressing through their actions and words that they are coming to mediation with open minds and a goal to work hard to resolve a dispute that results in a settlement that is best for all parties. First impressions are lasting and, when they are negative, they seem to dominate the mediation process.
3. Do Not Tell the Mediator That the Mediation is Going to be a Waste of Time
I often hear at the beginning of a mediation one of the parties saying “the only reason we are here is that it is court-ordered, I think it is a waste of time, and there is absolutely no possibility that the matter can be settled.” As a mediator, I enter every mediation with the hope and expectation that the matter can be resolved. Having one of the parties or attorneys make such statements at the beginning of the mediation certainly has a sobering effect on me and, I imagine, even more so on the other party and attorney. When one of the parties has shown such a disdain for the mediation, it is hard for me or the other side to get fully engaged in the process of working towards a resolution. While it is true that all cases cannot settle at mediation, a party’s chances of reaching a settlement should not die of self-inflicted wounds.
4. Do Not Speed the Process Up
While there is no hard and fast rule on how long a mediation should take, in my experience, most mediations that result in settlement generally take the better part of the day. Impasses happen quickly.
We are all busy, distracted and probably have too much to do. There is the natural tendency in mediation to want to get to the “bottom line” as soon as possible. For those who negotiate for a living, I think they would agree that getting to the bottom line too quickly is not the best negotiation strategy. Moreover, my experience tells me that in most cases the injured plaintiff needs time to tell his story and have someone listen to it. A good mediator takes time to listen to the story and gain the trust and confidence of the parties in mediation. Without trust and confidence in the mediator, mediations are exceedingly difficult to settle. For that reason alone, it is inadvisable to artificially speed up the mediation process.
Having said the above, if a mediation starts in the morning, I am grateful when a party tells me that they have a flight to catch at 6 p.m. That information gives me the opportunity to judge the pace of the mediation and prevent having to declare an impasse simply because there was not enough time to complete the mediation.
5. Do Not Mislead the Mediator
If you have chosen an experienced mediator who is thoroughly versed in the legal issues involved, it is inadvisable to mislead the mediator. While mediators are bound to impartiality, we are all human, and if one party knowingly misrepresents either the facts or the law to the mediator, that attorney or party will instantly lose credibility. As a mediator, I know and expect that there will always be some latitude in the representations made; however, out-and-out misrepresentations are a different matter.
A good example of this comes to mind. I was in a mediation when the corporate representative told me that this was his “bottom line” and he was “not going to pay a penny more.” He demanded that I inform the other side of this information. I tried to persuade the corporate representative against my relaying such information and informed him that if I did so, it would probably result in an impasse. He insisted that I do so anyway. In accordance with his instructions, I relayed the information exactly as it was given to me and was immediately told by the other side that the matter was at an impasse. I went back into the other room and told the corporate representative that, not surprisingly, the matter had come to an impasse. The corporate representative said, “What do you mean we have an impasse, the process just started?” He then went on to say, “You should have never believed me when I told you that.” As a mediator, when I am instructed to relay information exactly as it was told to me, I have an obligation to do so. If the corporate representative had more money to spend, which he obviously did in this case, in my opinion he should have communicated with me in a much franker fashion.
As a mediator, I always appreciate a call from an attorney a day or so before the mediation to advise me of any unique or unusual circumstances surrounding the mediation that could hamper settlement possibilities. These could range from the attorney having a very difficult client, a strained relationship with opposing counsel or any other matter that could be an impediment to an otherwise successful mediation. By receiving such calls in advance, I am in a much better position to overcome these obstacles.
I am often asked if opening statements are beneficial to the mediation process. In general, if conducted professionally, I believe that they are extremely useful and beneficial. It is the only opportunity that an attorney has to talk directly to the other party without the filter of the party’s attorney.
I have seen, however, cases where opening statements can be very counterproductive. Just last week, I ran into an attorney who told me that the mediation I had conducted for her several years ago did not resolve simply because the attorney had called the client a liar in the opening session. She informed me because of that accusation, the case did not settle where it otherwise could have. As it turns out, the person called a liar won at trial and was awarded a substantial amount of damages and attorney’s fees in excess of $400,000. The case could have settled at mediation for a fraction of that amount, but did not do so because of what was said in the opening statement.
I am also asked if mediation summaries are helpful. If the case involves complicated issues as to liability or damages, I would highly recommend sending mediation summaries to the mediator at least a few days in advance. The mediation process should not be stalled because the mediator does not know either the facts or law that are involved. If time or expense does not warrant a mediation summary, then at a minimum, a 10-minute telephone conversation to the mediator explaining the case is highly advisable.
I hope and trust that after reading this two-part article you do not fall into the traps that tend to result in an unsuccessful mediation. In part one of this article, I gave you five tips to help you prepare for the mediation conference. Part two offered you five additional tips to use at mediation which hopefully result in a successful mediation. By using all of these tips, you have given the mediation process the best chances of settling on terms most agreeable to you.Click here to read five more tips to a successful mediation.