How does a mediator add value?
A mediator’s expertise is in managing the dialogue among the parties to: help surmount barriers to settlement and reach an agreement they would not have reached on their own.
A skilled mediator can achieve something that no litigated result can ever match
- not simply resolving the dispute at hand, but
- repairing relationships or laying the groundwork for future cooperative ventures.
Typically, the parties walk away feeling greater satisfaction with both the process and the outcome.
What do I bring to the process?
I have sat in the same chair as the plaintiff’s attorney, the outside defense counsel, the in-house lawyer and the client. Because my experience includes all these different points of view, I am better able to communicate with all parties and see the issues through their eyes. With my informed, broader perspective, the parties trust me. Therefore, they trust the process, making a mutually agreeable settlement more likely.
My success as a mediator stems from a unique combination of abilities and experiences which, I believe, distinguish me as a mediator. These are:
- The ability to quickly distill a complex set of facts to its essentials
- The ability to garner trust from all different types of people in a variety of settings; and
- The ability to see a conflict from all perspectives as a result of the diversity of my professional experience.
What do I expect of the parties?
As with any aspect of litigation, there is no substitute for preparation. In the context of mediation, this means making sure the case is actually ready to be mediated.
- Each party should know the key documents and witness testimony he will rely on to prove or defend his case including, of course, damages.
- Discovery need not be completed by any means, but some basic understanding of what evidence will come in at trial (and what evidence will not) is typically important for a successful mediation.
- Another important preparatory step is informing the mediator about the case.
- Provide information about the facts of the case, any applicable law and any aspect of the case that counsel believes will affect settlement discussions.
- Make sure any written submission provides a complete summary of the facts, the procedural posture of the case and some sort of legal analysis, particularly if there are controlling cases or statutes.
- Do not simply “cut and paste” portions of the complaint or dash off an incomplete summary of the client’s position with virtually no attempt made to tie the facts of the case to any applicable law.
At the mediation itself, attorneys can do a number of things to enhance the probability of a favorable settlement.
- Be patient and realistic about the process.
- Make sure you have informed your client about the basics of the mediation process prior to the mediation session.
- Listen carefully to what the mediator has to say and, more important, make sure the client is listening and “gets it.”
- Don’t expect the mediator to do all the work. If you want to get your client to get the best possible settlement, you must provide the mediator with all the “ammunition” necessary to make your most persuasive case.
Finally, remember the old adage “Pigs get fed; Hogs get slaughtered.” In other words, don‚’t overreach.
What is my commitment to the parties?
I will work tirelessly to help you settle your case. My work begins the moment I am hired or appointed to a case. In every case, I strive to:
- Conduct pre-mediation calls with each counsel;
- Provide clear guidance as to what I would like to see in written submissions
- Read everything submitted to me carefully and more than once prior to the mediation.
- Listen to everything you and your client want to tell me. Facilitate a respectful, professional process and create an environment conducive to settlement.
- Be creative.
- Be more than a “number carrier.”
- Give you my honest opinion.