This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.
Number 4: Not Listening to the Mediator
Lawyers, listen up: yes, you must present your case to the mediator and impress your client. However, lawyers (and the clients) frequently fail to listen to what the mediator has to say, and more importantly, what the mediator is telling you about what’s going on in the other room(s). What’s the temperature in the other room? Is the other lawyer being helpful? Is the client in that room listening to her lawyer and the mediator? Is it really all about money? What are the stumbling blocks to a true global resolution? Are there non-monetary issues that may be crucial to the other side, but your client could care less about? Those answers may help get over an impasse about money, and the only way to vet those issue out is to listen and communicate with the mediator. Tell your client to listen to the mediaton. Be confident that the mediator is doing his best to convey your arguments and is being just as hard on the other side. By listening and asking questions of the mediator you can learn a lot more about the strengths and weaknesses of not just your case, but the other side’s case as well. You can walk out, even if no deal is done, armed with information that may help with your case. Your client is paying his share of the mediator’s fee: take advantage of his knowledge and expertise. All the great mediation advocacy in the world in a caucus room is useless without at times shutting up and listening.