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Effective Use of Mediation

Especially where mediation is mandatory under a court rule or order, many lawyers view it as an obstacle on the road to trial, to be circumnavigated as quickly as possible. That view, however, may lead to missed opportunities to settle cases on favorable terms. Mediation is essentially an opportunity. It is an opportunity to resolve a controversy at an early stage, without the burden and expense of trial. There usually is little downside to attempting to avail oneself of the opportunity presented by mediation, since the decision whether to settle is entirely voluntary. If mediation does not produce the chance to settle a controversy on attractive terms, a party always can decline to settle. The key to making effective use of the mediation process is knowing when and how to use it to maximize the chances of it resulting in a favorable settlement. Some tips in that regard follow. What Cases to Mediate The first important consideration is whether your case is appropriate for mediation. Not every case is. Since mediation is essentially a voluntary settlement process, it usually has the potential to be effective only where the parties enter the process with a genuine interest in settlement. Absent a mutual interest in settlement, mediation is likely to be a waste of time and money. Another consideration is how far apart the parties’ respective settlement positions are and whether each party regards the other as at least having the potential to take a reasonable view of the controversy. (Reasonableness in this context may be defined in terms of how close your adversary’s settlement position is likely to come to your own.) If the parties are worlds apart, or have radically different frames of reference regarding the controversy, mediation is not likely to be effective. Choosing a Mediator Like judges, mediators are not necessarily fungible. Some view their role as a neutral facilitator and take pains to refrain from injecting any evaluation of the parties’ positions into the process. Such mediators confine their approach to searching for common ground on which to predicate a settlement, and helping the parties recognize common ground that may exist. Mediators following this model may not push the parties too hard towards settlement. They may be of the view that if it appears after the facilitative process that there is little common ground on which to build a settlement, there is nothing more for the mediator to do. Other mediators take a more active approach in pushing the parties towards settlement. Indeed, some mediators of this school view themselves as having failed if their efforts do not result in a settlement. Such mediators may perform an evaluative role in the mediation process, letting the parties know their views on various issues or positions taken and exerting pressure on one party or the other to move away from positions which are perceived to be unreasonable. What type of mediator you may want in a particular situation depends on the dynamics of your case. If you believe your settlement position is eminently reasonable while the other party’s is not, and that a proactive mediator is likely to see things your way and may have a positive impact on moving the opposing party towards your position, a proactive mediator may be just the thing. In contrast, if you are concerned that a forceful mediator may perceive your position to more unreasonable than your adversary’s and may try to lean on you, you may prefer someone more passive. If you believe that both parties are likely to take a reasonable approach towards settlement, and that the chief value of the mediator will be to facilitate communication and perhaps offer some creative ways to move past impasses, you may want to shy away from a mediator who may be too quick to play an evaluative role. When a mediator injects his or her views into the process, there is no guarantee that they will coincide with yours. In short, know the dynamics of your case as well as the approaches typically followed by the prospective mediators you are considering, and choose your mediator carefully. Matching the type of mediator with the needs of a particular case can do much to enhance the prospects for settlement. Conversely, choosing the wrong type of mediator can be counterproductive. Pre-Mediation Submission Most mediators will ask that each party submit a brief summary of its position in advance of the date set for the mediation. This is your opportunity to educate the mediator about the dispute and hopefully convince him or her that your position is eminently reasonable. If you can achieve the latter, the mediator ultimately may act as a positive force in moving the controversy towards the kind of resolution you desire. Some mediators ask the parties to exchange their pre-mediation submissions with one another. Others prefer that they be submitted only to the mediator and not shared. It is critical to know which procedure will be followed in your mediation before you prepare your submission. What you include in your submission may well vary depending upon whether your adversary is going to see it. Opening Statement Most mediators will begin the mediation session by gathering all parties and counsel together and asking counsel for each side to make a brief opening statement. Instinctively, counsel may feel that his or her primary audience in making an opening statement is the mediator. That is not the case. The opening statement should be viewed as an opportunity to talk directly to your opposing party. While counsel should bear in mind the opening statement’s likely impact on the mediator, it is the opposing party, not the mediator, who ultimately must be at least partially persuaded as to the merits of your position for the controversy to settle. The opening statement should be addressed directly to the opposing party, not the party’s counsel. Counsel likely will have heard the arguments before and, in any event, is less likely to be influenced than his or her client. The mediation may be the first opportunity for each party to hear opposing counsel lay out his or her case — and what it might sound like in a courtroom — which can have a powerful effect on a litigant. Negotiations Following opening statements, most mediators will move the process towards an exchange of proposals and counterproposals, or talking through certain controlling issues in the case. These discussions can take place with everyone continuing to be in the same room, or with the each party and its counsel occupying a separate room and the mediator engaging in shuttle diplomacy. Putting the parties in separate rooms is, in my experience, the most common and conducive approach to facilitating settlement. For a party to utilize this process to maximum advantage, it is critical to have a well thought out plan going into the mediation, encompassing proposals that might be made, responses likely to be elicited, and the ensuing steps to be taken after each anticipated proposal or counterproposal. I recently had occasion to visit Russia and asked a local citizen what he thought of Mikhail Gorbachev. He responded that Gorbachev had some good ideas in initiating perestroika but should have thought more as to what he was going to do next. The same might be said of mediation. It is important going in to know where you are trying to end up and what intermediate steps are likely to unfold if you are going to achieve your goals. As Yogi Berra once said, “you’ve got to be very careful if you don’t know where you’re going because you might not get there.” That is not to say that there is no room for flexibility in playing out the mediation process. To the contrary, one never can predict with certainty an adversary’s approach to settlement negotiations. Also, one of the benefits of mediation is that the mediator may bring to the table creative approaches to settlement that the parties may not have focused upon without an outside perspective. While it is important to go into the mediation with a plan, it also is important to be sensitive to the dynamics of the process as it is unfolding, and be prepared to deviate from your plan if circumstances warrant. Conclusion As many judges are fond of saying, most parties are better off resolving their disputes by agreement than having a third party adjudicate them. Mediation is an excellent vehicle for affording parties an opportunity to reach a mutually agreeable resolution of their disputes, with the assistance of a trained intermediary who can provide valuable assistance in facilitating communication and bringing fresh insight to the process. As is the case with most other legal processes, a party desiring to use mediation advantageously will have a better chance of doing so if he or she understands the rules of the game and the skills involved.