Mediation: Practical Tips to Achieving a Favorable Outcome

Conflicts, Liability, Scope of Representation

Mediation has become an increasingly popular form of resolving a dispute. After all, litigation is costly, stressful, and time-consuming. In this Article, we discuss some of the benefits of mediation, and offer some guidelines for achieving a successful outcome.

The Advantages of Mediation

Whether voluntary or court-ordered, mediation offers several advantages:

Mediation promotes civility. Promoting civility is especially useful when parties to a dispute need to preserve a working relationship such as parents in a custody dispute or neighbors locked in controversy.

The parties have control over the outcome. The parties are able to work through complex issues without the stress and acrimony of courtroom proceedings. It also affords the parties the ability to make agreements specifically tailored to their needs. Going to trial, on the other hand, is unpredictable regardless of how talented the attorney is.

Mediation saves the parties time and money. The Department of Justice estimates that mediation saves civil litigants millions of dollars a year. Additionally, mediation affords the parties the opportunity to put the issue behind them and move on without the stress and emotional toll of a lengthy trial.

Helps reign in a client with unrealistic expectations. If expectations are planned resentments, that’s doubly true when the expectations are unrealistic. Having the mediator highlight weaknesses to the client’s case may help recalibrate her expectations.

Practical Tips for a Successful Mediation

Remember that preparation is key. The well-known mediator William Ury has said, “Most negotiations are won or lost even before the talking begins, depending on the quality of preparation.” So, it’s best to prepare accordingly. Generally speaking, the better you know a case, the more likely it is that you will be able to settle it successfully. Evaluate the case thoroughly and go into mediation day prepared to strike a deal.

Prepare your client, too.
- Prior to mediation, discuss with your client the cost of mediation vs. the cost of litigation. Prepare a list of expenses already incurred, as well as expected costs should the case not settle so that the client can make informed decisions on settlement offers. Expected costs should include the projected number of additional hours that may be necessary to litigate the case as well as other costs (e.g. costs for obtaining expert testimony). In contingency-fee cases, the client may not be too concerned about the costs as the attorney is paying the expenses, not charging for time and taking the risk in the monetary investment. In these cases, it will be even more important to keep the client’s emotions and expectations in check.
- Discuss the benefits of mediation and how the client can take advantage of them. Standing on principle is like quicksand in a mediation. Help your client focus on what they ultimately want and explain how mediation may help achieve that end.
- Explain the role of the mediator as a neutral intermediary and let the client know what to expect. A client can become exasperated when the mediator highlights the weaknesses of his case and may perceive the mediator as failing to be impartial. This can also happen when the mediator continues to bring counteroffers from the other side. But pinpointing weaknesses and presenting counteroffers are part of the mediator’s role and necessary to bring the parties to a compromise.
- Emphasize the importance of keeping one’s composure. Yes, the client may be overwhelmed with emotion and this is his opportunity to be heard, but acting highly reactive and hostile is more than just unbecoming. It can signal to opposing counsel that they can be manipulated at trial.

Draft an effective mediation statement. The mediator will likely only spend a few hours reviewing the mediation statements prior to the mediation so be strategic and concise. Begin with a high-level overview of the parties and claims. Next, present the facts, claims, and defenses succinctly. Include any documentation you think is necessary, but do not overdo it. Propose a roadmap to a settlement agreement and where you hope to end up. Read more detailed tips on how to draft an effective mediation statement from the ABA here.

Set bargaining points prior to mediation. Calculate what the client has already spent on this matter, what the lowest viable offer would be, and what the target is. This will help inform what constitutes an acceptable settlement, and whether or not the case would be better off in litigation. It is important to know when it is time to walk away.

Be prepared for possible new information. While it is important to have a range of an acceptable offer or amount a client is willing to pay prior to attending a mediation, sometimes a new fact or theory may be presented. This may be disappointing and difficult to accept, but preparing your client that sometimes adjustments to a range may be necessary if new information is revealed, this will help navigate toward a successful mediation.

Facilitate the sharing of relevant facts and information. Clients need to know what information is important to share and be urged to reveal what is relevant to the case. They should be encouraged to take responsibility for trying to settle the dispute. You will have time to speak with your client in private, and can decide when the appropriate time to counsel them is.

Propose settlements and negotiate. The attorney can develop settlement options that offer each side something to gain. Much of the time these options aren’t perfect, but allow each party to walk away with some of what they hoped to gain from mediation. It’s doubtful anyone has walked out a mediation absolutely thrilled with the outcome, and that’s compromise in a nutshell.

Advocate without being adversarial. While it’s true that most attorneys have no formal training in mediation and are trained to see parties to a dispute as adversaries, mediation adopts a different philosophy–one of collaboration. Remember, you can advocate without being adversarial. You can be tough, but also professional and kind.

Don’t lose credibility. Suggesting very high settlement numbers that are not realistic, and then backtracking will hurt your credibility. Beware of dropping anchors too soon. If the other party does not believe you are negotiating in good faith and are there to strike a deal, this may hinder your ability to get a good settlement for your client.

The flip side to this is Don’t give up. It is not uncommon that the start of a mediation the numbers proposed are unrealistic and drastically apart. Sometimes the demand is ludicrous and the offer is offensive. Let your client know in advance the importance in letting the process work no matter how disparate the demands and offers may be at the beginning.

Allocate sufficient time. Sometimes mediations go longer than the original amount of time allotted. Make sure you and your client have cleared your calendar to be able to stay for the whole mediation including additional time if necessary. In complicated cases or where the parties are uncooperative, mediations have been known to go into the evenings.

Take care with mediation agreements. Be meticulous regarding the wording of the settlement agreement. Failing to do so (even with seemingly minor details) can have disastrous results. The agreement should identify the parties clearly, and set forth the terms clearly. Make sure the final product is true to the spirit of the negotiation and intentions of the parties.

Conclusion

Mediation is a powerful tool to reach a successful outcome if used effectively. Be mindful of the collaborative, non-adversarial nature of mediation, and prepare yourself and your clients adequately.

By Lauren Bianchini