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:
- 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.
- 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.
- 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.
- 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.
- 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, viewing in San Francisco and Los Angeles on December 16, 2011 and thereafter available On Demand.
By Julie Brook