Six Tips for a Successful Mediation

Whether voluntary or court-ordered, mediations can provide parties an opportunity to better understand their cases and come to a resolution without the added expense and stress of going to trial. 

Here are six tips for making the most of your client’s mediation session. 

  1. Prepare, prepare, prepare: Spend adequate time investigating and preparing your “talking points,” the salient and relevant facts and applicable law of the case being mediated. Knowing the appropriate verdict director for each claim in the case can help focus mediation discussions on what each side needs to show to prove their case. Don’t forget to discuss these talking points with your client prior to the mediation while reminding them that not all facts may be known, that the law is subject to several interpretations depending on the judge and jurisdiction, and that maybe, just maybe, lawyers and clients will learn something new at the mediation. Most mediators (including those at Eischens + Vogel Mediation Solutions) appreciate receiving case summaries from the parties prior to the mediation, which often lead to pre-mediation discussions and phone calls, thereby setting the table for a successful mediation.  
  2. Go in with open ears and minds: It can be self-defeating to walk into a mediation with pre-determined bottom lines, deciding in advance as to absolutes above or under which you will not go. While it’s entirely understandable that lawyers and clients will discuss case value and potential authority to prepare for mediation, success will be much more likely if the participants come in thinking in terms of ranges, with a willingness to consider a significant fluctuation upward or downward to get the case resolved. Spend the day listening to the information shared and points raised by the mediator and be prepared to re-evaluate your position to reach an agreement. Allow your clients to speak and share their thoughts and wants and needs.
  3. Have full and complete authority present: Especially in a court-ordered or mandated mediation, it is not only important but required to have the individuals with authority present to resolve the case during the mediation. This is usually simple on the plaintiffs’ side. For defendants, this generally means having an appropriate company official who can enter into an agreement resolving the case, but also requires having a representative from an insurance carrier where that comes into play. With many mediations being conducted virtually, the reluctance to have these individuals in attendance is difficult to defend. More important, not having them in the room and actively participating in the process can hinder resolution, as it is far easier to say no via e-mail or over the telephone, and not having listened to the information and insights shared by the mediator throughout the day.
  4. Avoid ‘tit for tat’: Each party should work during the mediation to move toward what they believe is a reasonable value of the case – but that movement should not be dictated by the adverse party. One of the more common roadblocks in mediation is to react with anger to what seems to be an unreasonable position taken by the other side and perceiving this as an invitation to act equally unreasonably. Resist the urge to respond in kind. Play your game, not the other side’s, and your case has a far better shot at getting settled.
  5. Don’t sweat the small stuff: Too often, the parties reach a preliminary agreement on a monetary settlement, but it starts to fall apart over extraneous details. Before pounding the table, reflect on how often in your careers you have actually litigated subsequent issues surrounding settlement agreements before insisting they are somehow imperative to getting the case wrapped up.
  6. Be patient: Successful mediations require compromise, and compromise is difficult and takes time. Also, many cases have strong emotional elements to them, and those emotions need to be acknowledged and dealt with at the mediation session. Again, this requires an investment of time, but the moments spent addressing these difficult topics most often lead to a greater understanding of what is most important to a party in a case and a more satisfying mediation experience for all involved.

Eischens + Vogel Mediation Solutions mediates many types of civil disputes, from employment to personal injury to commercial matters. For more information and to schedule a mediation, visit our website.