United States: Ten Tips for Getting Great Results from Mediation

Introduction

Parties are increasingly turning to voluntary mediation of their disputes as an alternative to litigation. The reason why mediation has become so popular is its high success rate. Many successful mediators report anywhere from an 80% to 95% success rate. A successful mediation produces a result that both sides can live with and that brings an end to the adverse relationship between the parties.

Here are some strategies to help you get the best results from mediation:

1. Attitude. Mediation is not litigation. It is a structured form of negotiation. Therefore, the objective is to get both sides listening and talking, not alienating one another. This requires a different frame of mind than litigation. It is astonishing how often this fundamental difference between mediation and litigation is overlooked.
2. Preparation. The single biggest mistake that attorneys make in the mediation process is not spending adequate time preparing. In this context, preparing means putting together a settlement notebook. Parties who go into a mediation having spent considerable time and resources in preparing a mediation package are far more likely to achieve success than parties who, at the last minute, send a copy of the pleadings for the mediator's consideration
3. Written Materials. Part of adequate preparation means providing the mediator with written materials that address the strengths and weaknesses of the case. It often makes sense to send out two different mediation statements: one that is delivered to both the mediator and the opposing party, which obviously outlines the case from your perspective and highlights its strengths, and a second, addressed only to the mediator, that recognizes vulnerabilities and weaknesses in the case. A good mediation package should include a recitation of the facts with important documents, including attached affidavits; a detailed discussion of damages; and a strong legal argument section, with key cases attached.
4. Openness. Counsel for the parties in a mediation often choose to keep important evidence a big secret. This is a by-product of the litigation atmosphere and its "hide-the-ball" concept. Secrecy is generally counterproductive in mediations.
5. Opening Remarks. In most mediation proceedings, the mediator will start by setting forth the ground rules and expectations. However, after that, some mediators ask the parties themselves to discuss the case from their point of view and even how the case has made them feel. Other mediators ask the attorneys to essentially give an opening statement, much as you would see in a courtroom. Still other mediators ask the parties to disengage and separate into conference rooms for private caucuses once the ground rules have been laid out. As the range of emotions differs depending upon the opening remarks employed, you should check with your mediator in advance of the mediation to identify his or her style and preferences. If you object to a particular style, you should make that objection known in advance of the mediation. Opening remarks that address a party's point of view without being unnecessarily antagonistic or accusatory are effective. Remember, there is a fine line between an effective opening presentation and one that is overzealous or accusatory.
6. Private Caucuses vs. Face-to-Face Mediations. In most effective mediations, especially when there are lawyers involved, the parties separate into private conference rooms and the mediator engages in shuttle diplomacy. At this stage, you must learn to be patient because the delays that occur between visits are an important part of the mediation process. If your mediation involves parties who have a continuing relationship, however, you may want to suggest to the mediator that the face-to-face facilitative approach be utilized. When the parties have an ongoing relationship, such as in some workplace situations, it often works better to have the parties sit at the same table and listen to each other attempt to frame the issues. What often happens is that they actually work together to seek a common resolution because of the ongoing relationship.
7. Opening Offer/Developing Your Negotiation Range. The opening offer is critical in a mediation. It can make or break the process before it ever gets started. A "negotiation range" should be employed over a "bottom-line" approach to create a win-win situation. However, the opening move should not be so exorbitant or restrictive that the other side walks away right out of the chute.
8. The 80/20 Rule. In many mediations, you can set your clock on progress by utilizing the "80/20 Rule." In other words, when the parties have set aside an entire day to mediate, it is not uncommon to see no real progress until the end of the day. Often, most of the morning is spent with the mediator framing the issues and getting a better understanding of the disputed facts of the case. The mediation begins to pick up momentum in the last third of the mediation, and 80% of the movements occur within the last 20% of the process. Know this rule going in, and be patient. You will be surprised at how often mediations follows this 80/20 Rule.
9. Impasse. If you are approaching an impasse, be prepared to help the mediator set up "trial balloons" or "the mediator's number," namely, numbers that come from the mediator, not from the parties ("If we can get the other side to X, do you think you would be able to go along with that?"). Mediator proposals are an effective way to break impasses, and as the name suggests, they belong to the mediator. Note, however, that creative parties can help set them up behind the scenes.
10. Reaching Final Agreement. Once you have reached final agreement, it is critical to put your agreement in writing. As a matter of fact, in Colorado, as of the time of this writing, the status of the law is that an agreement reached in mediation is not binding unless it is in writing. This result was announced in Nat'l Union Fire Ins. Co. v. M. Marjory Price, 78 P.3d 1138 (Colo. App. 2003) (Cert. granted, Colo., Nov. 17, 2003). In Price, the Colorado Supreme Court granted certiorari on two important issues that would have affected mediations in Colorado:

Conclusion

The mediation process involves a lot of predictable moves and countermoves by the parties on both sides, as well as by the mediator. To maximize your chances of getting great results in mediation, you must anticipate, understand, and know how to respond to these moves when they happen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.