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5 Tips for Successful Mediation

Mediation has been increasingly used to resolve many types of legal disputes. And it’s no wonder why —  mediation gives the parties an opportunity to settle the dispute without incurring substantial litigation expenses. Here are some tips to make your mediations as successful as they can be.

Although there are no universal rules about how to conduct a mediation, these 5 tips are useful and effective:

  1. Be willing to listen. To negotiate effectively, it is important to hear the other side’s concerns and to understand what options might be available that your client hasn’t yet considered. Even if the mediation doesn’t result in a settlement, the mediation process is useful for gaining valuable insights that aid counsel in preparing for trial.
  2. Use the best evidence. Withholding evidence that is damaging to the opponent tends to be an overrated strategy. Often, the evidence is better put to use than being held secret for some future dramatic unveiling. Consider sharing the information confidentially with the mediator to help the mediator assess the parties’ positions.
  3. Don’t rush. The mediation process often takes a lot of time. In some complex cases, meditation can last for days. Be patient and prepare the client for a long session.
  4. Consider the mediator’s proposal. The mediator’s proposal is a technique that many mediators use, particularly after hours of negotiations have passed and the mediation seems to be at an impasse. Generally, the mediator will make the proposal by selecting a specific amount as “the settlement.” Each side will then be asked confidentially whether it will agree to the settlement. If both sides agree, the parties are notified that the mediator’s proposal has been accepted. If one side does not agree, it will not learn whether the other accepted or rejected the mediator’s proposal. When you hit an impasse, consider suggesting to the mediator that a proposal might be appropriate.
  5. Consider nonmonetary items. Consider nonmonetary terms that may be crucial to the settlement and when those terms should be injected into the negotiations. For example, in employment cases, the employer will often demand a confidentiality provision prohibiting disclosure of settlement terms, and the plaintiff may want provisions on the furnishing of a letter of reference, recommendations, or limits on what the employer can say about the plaintiff. And timing is everything: If nonmonetary items are raised too early in negotiations, the other party may be able to use them as leverage to increase or decrease the monetary consideration for settlement; if nonmonetary terms are not raised soon enough, there is a danger they could be rejected as arising after the fact of settlement and too late to be considered.

Mediation is often the last resort before litigation and the last opportunity to exercise creative flexibility. Seldom do good ideas, even when rejected, prejudice chances of settlement. Take full advantage of this opportunity and you may reap the rewards in time, money, and peace of mind.

On mediation and other forms of alternative dispute resolution, turn to CEB’s California Civil Procedure Before Trial, chap 45. Also check out CEB’s program Selected Ethics Issues in Mediation and Settlement Negotiations, available On Demand.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 Responses

  1. Thank you Julie for highlighting these tips. I’d like to expand on your point number 2, “use the best evidence.” To use and present the best evidence, I encourage attorneys to think visually and create graphics (such as animations or timelines) for mediation. Often attorneys wait until trial to invest time and money on multimedia graphics to best present their case. But with so few cases actually going to trial (especially here in California, given the courts crisis limiting the availability of courtrooms), it behooves attorneys to put on their best possible case at mediation and to think of mediation as trial. My article “Why Attorneys Should Treat Mediation Like Trial” goes into this in more detail if any of your readers are interested, http://cogentlegal.com/blog/2011/06/10/why-attorneys-should-treat-mediation-like-trial/
    Thanks again,
    Morgan Smith

  2. A first cousin of “the mediators proposal” is telling the mediator of an “approximation’ of your bottom line. Tell your adversary “Will $X settle the case?” is heard as “You’ve already offerred me $X” and is a floor in the their mind. Telling the mediator you have $X, that you need to save off of, allows your proposal to get floated without risk while you have $X + $Y still in your pocket. You will either settle the case or go to pre-trial with your authority in your pocket.

  3. Great post and great comments! I’d like to also add a couple of useful articles:

    12 Ways to Make Your Mediator Work Harder for You at http://www.mediationtools.com/articles/ART_12_ways.pdf

    Lawyer Preparation for Mediation Puts Money into Clients’ Pockets at http://www.mediationtools.com/articles/preparation.html

    Choose Carefully: All Medaitors Are Not Created Equal
    http://www.mediationtools.com/articles/selecting.html

    and more at http://www.MediationTools.com.

    Hope this helps!
    Lee Jay Berman
    leejay@mediationtools.com

  4. […] Blog – Your Partner In Practice: 5 Tips for Successful Mediation blog.ceb.com/2011/12/05/5-tips-for-successful-mediation/ Filed Under: […]

  5. Great post! Been reading a lot about mediation tips. Thanks for sharing!

  6. A good friend of mine is getting divorced and is looking for a good mediator. I didn’t realize that mediation can take a long time to resolve. I will ask my friend if he knows about this, I understand this process is tough.

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