February 10, 2015 by AmyN
Every lawyer, every mediator has his/her own view on that. Everyone agrees that resolution is the success, but how to get to that point evokes as many opinions as there are lawyers…and mediators.
So, this is my take on what makes a mediation successful. IMHO, I’ve identified three factors that make for a successful outcome:
- First and foremost, attorneys who are prepared and come willing to settle, knowing that their clients won’t get the pie in the sky they’d like. The attorneys are civil and professional with each other and with me. (Thank you for that.) They are able to work cooperatively and collaboratively to craft a resolution that their clients can live with. They are willing to exchange information (whether or not it’s been produced in discovery) to facilitate the resolution. There are no cries of “but that’s free discovery.” Oh, please. Really? If the attorneys aren’t willing to share information to resolve the case, then why was I hired? What’s the point of mediating now?
- Clients who understand and appreciate litigation risk. That’s a huge part of the attorneys’ job in preparing their clients for mediation. Clients who don’t know and/or don’t appreciate the litigation risk are usually disappointed, not just if the case doesn’t settle, but if they proceed to trial…and they lose. Use of a decision-tree may help in preparing a client to understand and appreciate the risk. Savvy business people who can put aside feelings of outrage, betrayal, and similar emotions (the “ a million dollars for defense and not a penny for tribute” attitude) and look at resolution as a smart business decision will usually be successful. It never hurts to remember that pigs get fed, while hogs are slaughtered.
- Clients who understand that they control the outcome, not me. It’s not up to me to decide whether to settle; that’s between lawyer and client. I’m there to facilitate, to provide an evaluation (if asked), but they need to understand that it’s their case, not mine. Much as I might to prevent them from making mistakes based on my experiences, I’ve learned to take Archie Bunker’s advice to his long-suffering wife, Edith, and “stifle myself.”
Every mediator has a different style; I always have pre-mediation phone calls with both attorneys (separately, of course) to get acquainted, understand the personal dynamics at play, and explain I think how the session will go. That makes me more efficient with the time I have, allowing me to get started right away. For me, that means meeting with the various parties in caucus first, and then a joint session if appropriate. Sometimes that is, and sometimes it isn’t.
Every mediation is surprising. The case I think will never settle does, and the case that should settle doesn’t. (Of course that’s consistent with my personal investment philosophy of buying high and selling low.) However, when the three factors are present, it makes my work very satisfying.