Archive for October, 2012

Strategies for Achieving Success in Mediation

Tuesday, October 30th, 2012

By Hillary Earle, President Amicus Mediation & Arbitration Group

So you’ve decided to mediate. Great move! Now it is time to develop a mediation strategy that will allow you to achieve your greatest possible outcome.

As a national ADR service provider, we have had the benefit of observing some of the best and the worst mediations strategies and approaches.  From those observations I would like to share some of the best practice strategies and tips that I believe will help you boost your mediation success ratio.

Evaluate your case …… is it truly ready for mediation?

We have seen many mediations stall because a party or parties neglected to realistically evaluate their cases’ mediation readiness and ask the following questions.

Is there any discovery outstanding that could significantly affect the value of the case?

Is the fact pattern clear? Can your theory of the case be credibly supported by evidence?

Have you provided everything necessary to your adversary well in advance of the mediation so that they can adequately conference the case with their client or supervisor?

Do your homework when selecting a mediator

First determine which type of mediator you are looking for on the case? Would the case benefit from an evaluative mediator that will provide a little more guidance and opinion on the case? Or would the case benefit from a facilitative mediator, or settlement coach who will work  through the facts and issues with the parties? Could a hybrid of the two styles, be a good fit?

If you do not know of a suitable mediator, ask around.  Find out which mediators are being used by your peers on both sides. There are many folks hanging out a mediator shingle that may not have the skill set or experience you are looking for.

Consider contacting a local ADR provider. Many can provide you with guidance on the top mediators that may work best for your case.  For example, at Amicus we are able to provide data on some of the more frequently used mediators in an area, to include settlement ratios, client references and customer feedback scores.

Finally, be open-minded and willing to consider your adversary’s mediator proposal. Most of the time parties propose a mediator not because they have found them to be slanted to their position but rather because they have successfully settled a past case for them.  You may find that your opposition will be more willing to be guided  by a mediator that they have some trust and confidence in.

Prepare ! Prepare ! Prepare !

Mediation is non-binding and a much more casual forum than arbitration or the courthouse. There can therefore be a temptation for parties to shoot from the hip and not prepare for their mediation, adequately. Not preparing for your mediation, is a misstep that will greatly undermine the success of the process.

Prepare your case – Make sure you have all that you need, ( reports, lien information, statements) to document and support your position. Know your case’s strengths and weaknesses as well as those of your opposition.

Prepare your client-  Make sure you have met with your client. Be sure to discuss the possible range of settlement on the case as well as the strengths and weaknesses of the case.

Prepare your mediator – Be sure to give your mediator something to work with.

Judge Donald Sullivan, a prominent NY mediator, suggests that parties provide the mediator with an outline of the strengths of their case and their position as well as supporting documentation. If possible, provide the same to your adversary so that they have time to review and digest it with their client. This may serve to level out their settlement expectations.

Empower your front line negotiator or Make sure that the person with Authority to Settle the case is in the mediation, whenever possible

I cannot tell you how many cases I have seen, go unsettled because the decision maker was not part of the mediation process. They remain unconvinced of the case’s value because they were not part of the mediation magic.  So much occurs in a mediation that can serve to modify a party’s view of the case such as a sympathetic claimant, extremely strong presentation by opposing counsel, or highly persuasive input and feedback from the mediator.

Often negotiations stall when the final decision maker has not had the advantage of observing first-hand the evolution of the case through the mediation process.  Often the mediation is ended just short of the parties being able to achieve a sound settlement.

A good practice is to make sure that there is access to authority at least up to plaintiff’s last negotiated demand before the mediation. Rarely is that amount needed, but one must be prepared for the possibility that the plaintiff had accurately valued the case.

If the decision maker for your case is  not local, you may choose to have them participate virtually using  a webcam mediation product like Xpedimeet!

Offer Sympathy and Remain Affable

Often parties focus purely on the factual components of a case and dismiss the emotional drivers of both the parties involved in the dispute and at times, the emotional state, egos, or frustration of the claims or legal professionals involved.

Recognize that behind that plaintiff case, there is a person who feels that the quality of their life was undermined by this incident. It is reasonable that they may feel angry, slighted or dismissed. These emotions, if not diffused can block meaningful negotiations.

It will not undermine your posture or be admitting fault, if you simply offer sympathy for what the plaintiff has experienced.  For example, Mr. Smith I am sorry that you were hurt as a result of this incident. By mediating, we hope to be able to come up with a resolution that will allow you to put this behind you.

This type of approach, with the plaintiff directly has proven to be very effective in medical malpractice mediations.  Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 461, 485-86 (2003) cites, “When no apology was offered, 52% of respondents indicated that they would definitely or probably accept the offer. In contrast, when a full apology was offered, 73% of respondents were inclined to accept the offer.

Remaining affable is another component that strongly aids the emotional health of a mediation. John Kerns, a master mediator and arbitrator from Delaware, provides the following strategy “ If the other side begins with a poor negotiating style, do not match their insanity. A party may initially make an unrealistic offer or demand, out of anger, perceived insult or because they have a private plan for the money. You may be tempted to respond in kind. Rather, proceed with your Negotiation Plan and make a series of sound offers/demands despite the fact the other side’s movement may not be to your liking. After the first two to three moves the other side will upon seeing real money on the table, begin to fall  into line. 

Be Creative

Use creative, “out-of-the-box” thinking to solve problems. Florida mediator, Thomas Glick notes in his book, “Creative Mediation” how lawyers and judges can resolve a lawsuit with creative compensation. In one example he suggests,  if money from a party isn’t available, plaintiffs can be compensated with company assets from the defendant such as clothes or sporting goods.

Another creative approach to resolving a case is to offer to  pay the plaintiff’s mediation costs.  This offer can provide some latitude in your negotiations while still protecting your settlement budget.

Be Patient and Committed to the Process

Allow the mediator to facilitate the discussions and manage the process to the end.

One of the greatest mistakes we see parties make is that they seek to end the mediation prematurely or get frustrated if the progression of the case slows.

Practicing Mediator & Arbitrator, Michael Tempesta (former Senior Settlement Coordinator for NY Supreme

Civil Court,)  suggests that there is great value in being patient and maximizing the value of the mediation. “in my experience, most cases settle at the mediation table, however the ones that don’t, will still benefit greatly from the process as the mediator will be able to provide you with valuable feedback on the strengths of your case moving forward. “

Mediation requires patience, flexibility, creativity and hard work. Through mediation parties can close their case and reduce the time and expense that would be associated with litigation.

In my 18 years of experience in the ADR industry, I have seen some of the most unlikely cases, settle at mediation. The bottom line is, MEDIATION WORKS! Commit to the process.

Hillary Earle has been an Alternative Dispute Resolution (ADR) professional for over 18 years. As president of Amicus Mediation and Arbitration Group she has worked with insurance companies, major law firms, and municipalities to help them elevate and administer their ADR programs.