Mediation offers both parties tremendous benefits: quick and final resolution, reduced expenses, certainty of outcome, and stress reduction. It has been argued that mediation can result in the loss of tactical advantage is some settings; and, therefore, the parties should not divulge too much for fear of loss of a tactical advantage.
Others take the larger view that mediation is an excellent opportunity to favorable resolve a case and that the loss of a perceived tactical advantage often is illusory. Each party must present the facts that encourage the other parties to recognize the risk of going forward to trial.
To enhance the possibility of success at mediation and avoid blowing the mediation up, parties should avoid the following common mistakes:
1) Don’t explain the benefits of mediation to your clients. Mediation eliminates the risk of trial and the potential for an appeal. It reduces stress and expenses. It guarantees an immediate and known result. Explaining the benefits of mediation to your clients will save them time, money, and stress. They should hear this from you before the mediator repeats it.
2) Don’t explain the mediation process to your clients. Manage your clients’ expectations and reduce anxiety by explaining in detail the mediation process. Mediations used to begin with all parties and counsel in the same room. Reassure your client that the parties and counsel will be in separate rooms; and that the clients will not be examined by opposing counsel. Explain that offers and counter offers cannot be mentioned at trial so there is no trial downside to making an offer. If the case does go to trial, the Judge is not informed of the offers and counteroffers at mediation—only that the case was settled or not settled.
Other things to mention include the defense’s evaluation process; that the defense had plaintiff have unequal bargaining positions, in that an adverse trial result is less devastating to the defense; and that the parties can designate/identify matters not to be revealed to the opposition. They must understand that the goal of mediation, which almost always compromise.
3) Don’t explain the mediator’s job and limitations. Mediators are neutral and objective. They do not have the power to order anything. Mediators make suggestions, which the cient and counsel can accept or reject. Mediators can look at a case objectivly and can suggest the strengths and weaknesses of a case in a calm, organized way. Because mediators have no dog in the fight, their only job is to help resolve the case to the benefit of both sides. Advising your clients of the mediator’s responsibilities will allow them view the mediator as a valuable intermediary, not an adversary. Explain that the mediator will focus on the weaknesses of your case, not the strengths; and will do the same with the defense.
4) Don’t explain the “bidding” process to your client. It’s important to control a client’s expectations during the bidding process of a mediation. Bidding can seem like a game, but it’s a game that must be played. The opening demand is not a bottom dollar demand. It is not made with the expectation that it will be paid. The defense’s opening offer does not reflect their evaluation. It is not an offer that the defense expects to be accepted. Remind the client that the only offer that truluy matters is the alst offer; is the offer that is finally accepgted or rejected.
Keep your client’s emotions under control by reminding them of the weaknesses in the case and why the case can be lost. Remind them that the bidding process takes time and even more patience. They shouldn’t be insulted or angry by an offer, especially if it’s a low-ball offer. And don’t allow your client to threaten to walk out unless the opposition “gets real.” Relying on the expertise of the mediator during the bidding process is the best way to achieve a successful resolution.
The mediation success rate is, in my experience, in the 90%+ range. Mediations that do not succeed often result in post mediation resolutions, after the parties have had an opportunity to continue their evaluative process. Usually cases that go to trial result in disappointment to the losing party. More often than not, the losing party has not clearly understood the risks of their case. Mediation usually helps clarify the risk/benefit analysis.