Making Mediation Work: 7 Common Sense Tips for a Successful Mediation

MAKING MEDIATION WORK

7 Common Sense Tips for a Successful Mediation

In mediation all of us, whether we are mediators, clients, attorneys, corporate representatives or insurance carrier representatives, should have the same goal: to obtain a successful resolution of issues and differences at mediation. Whether mediation occurs pre-litigation, as a prerequisite to arbitration, or as a court ordered or voluntary mediation while the case is in litigation at the trial or appellate level, these are a few tips which can facilitate a successful resolution.

1. When at all possible, try to mediate your case early. Mediation offers the advantages of confidentiality, control and the opportunity to resolve differences before costs become prohibitive to a successful resolution of the case. Many cases can be successfully mediated without a great deal of discovery, especially when the lawyers are willing to discuss the pros and cons of the case prior to mediation. If you feel that you really need discovery, try to secure a mediation date far enough in the future that you will be able to obtain the necessary discovery in time for a successful resolution at mediation.

2. Everyone involved in mediation should be prepared. I realize this sounds basic, but it is helpful for me to receive position statements and documentation at least five days prior to the mediation so that we are at least entering the process on the same page. Obviously, this varies from case to case, and often a short position statement will suffice. The statements or documents are helpful and usually necessary for the mediator as background information; however, the mediator will usually shift his or her attention to ideas for resolution once the mediation has begun.

3. Know your clients, company representatives or insurance representatives prior to appearing at mediation. Most of the time one or more persons will be attending their first mediation, and they should be informed in advance of the reasons for mediation and if possible, the difference in alternative resolution of a matter and proceeding through the legal system. Try to determine the needs, goals and aspirations of your clients and representatives and by all means, remember the emotional needs of your clients. Sometimes not allowing the “venting process” is the most serious impediment to resolution at mediation.

4. Keep a positive attitude that the matters involved in mediation can be resolved at that time. I often hear attorneys state that “I don’t think that this case has a chance of being resolved at mediation.” Let the system work. You are there for a specific period of time in an informal setting where a matter can be resolved, and give the process a chance to work. Trust the mediator, and if he or she believes the case can be resolved, let all the facts and circumstances develop without trying to rush the process. Remember, this is the most important day in the lives of many persons who come to mediation, and to the extent possible, use the time for resolution and not to be adversarial.

5. Feel free to communicate with the mediator, clients, or representatives on possible solutions which may be “outside the box.” While most parties are either looking to receive (or minimize the payment of) money, there may be other solutions which are much more advantageous in the long run.

6. Remember that all cases, all parties and all circumstances vary from mediation to mediation. Alternative Dispute Resolution is a dynamic settlement process, and a settlement should be tailored to the specific facts, needs and desires of the parties.

7. Make certain that a settlement memorandum is prepared and signed immediately upon resolution of the case. Virtually everyone is ready to leave as quickly as possible after an agreement has been reached, but a written settlement memorandum is especially important where agreed rights and obligations flow to and from numerous parties. The extra few minutes taken at the end of the mediation to memorialize the agreement will result in closure and resolution with more lasting and satisfying results than litigation.

Please let us know if we can assist you with any of your Alternative Dispute Resolution needs!