THE PERSPECTIVE OF THE MEDIATOR

This edition includes bullet points from mediator collegues at the International Academy of Mediators.  They are random tips for you to consider in an effort to maximize your results at mediation.

• Create a “mosaic of party & attorney interests” as part of your planning for mediation.
• In selecting the mediator, be proactive. There is a dark side to ADR in which some neutrals are not completely impartial. Go with a professional and don't worry about the cost.
• Call the mediator before the hearing to discuss concerns, insights, internal difficulties and issues you feel will be impediments to settlement.
• Prepare your client(s) to interact with the mediator in a personable manner. This is not like a deposition where you suggest that your client only answer with “yes” or “no” statements.
• Anticipate a predictable start to the negotiation and plan your initial position in a place that encourages settlement and areasonable response.
• Rather than walk into the mediation with an amount you consider your “settlement authority,” create a margin of settlement value that would be acceptable.
• Have the client explain the personal side of the facts to the mediator.
• Seek out the reaction of the mediator to: a) the story of the case; b) the negotiation moves you are contemplating.
• In the event you do a joint session, consider who your real audience is and what their motivations are.
• Use the client to speak in a joint session only if the client will sell.
• Approach each dialogue in the mediation in a cooperative fashion. Remember Professor Axelrod's little motto: “Start cooperatively, retaliate if necessary, be ready to forgive, and be clear and consistent in your messages.”
• Acknowledge risk while expressing confidence. Make sure your moves are credible. Resist the temptation to do the complete opposite of what the other side's moves. You can control the negotiation agenda by showing credibility.
• Reward good moves and punish bad ones.
• Plan on dealing with deceptive moves and statements. Don't be surprised by them.
• Avoid stock phrases like: “This is a waste of time;” “I can't negotiate against myself;” “That demand is insulting;” “We're out of here unless….”
• Ask the mediator for input on negotiation moves i.e. “we're thinking of offering X dollars, what do you think?”
• Ask the mediator hypothetical questions. It is a way to gently reveal where you are at without being direct.
• Pull the mediator aside if you need help with the client or feel it would be easier to speak about a sensitive subject.
• Deal with collateral issues up front.  These include: confidentiality, taxes, etc. In fact, circulate a settlement agreement or deal memo before the session.
• Avoid the “one size fits all” approach to mediation and plan on improvising when necessary. Mediations morph and you need to be flexible.
• The ultimate goal is to find out the best offer the other side is willing to make.
• Don't move the goal posts backward if the other side makes a demand in excess of their previously stated position.
• In the event you need to reevaluate the case because of authority issues, acknowledge to the mediator that you have internal problems convincing decision makers. The mediator can help come up with a game plan that steers the case in the direction of settlement.
• Make sure you communicate to the mediator what you expect of the process.
• Analyze and consider the other side's values in addition to money.
• Avoid ultimatums. Figure out a way to keep the dialogue open.
• Make sure the mediator knows if there are decision makers who are not at the table.
• Put yourself in the other side's shoes and consider how an opening statement might sound.  Then craft your statement to best influence the listener.
• Never start a session without having spent at least a few minutes caucusing with the mediator and discussing the game plan for the day.
• The real mediation session begins during the litigation. Show respect for your adversary and give courtesies such as reasonable extensions on discovery. This attitude will flow into the mediation.
• Demonstrate some compassion and respect for the other side's position, even if you disagree with it completely.
• Show empathy for the mediator's task----you don't want a quitter.

My thanks to mediator Jeff Krevis of LA for putting this instructive list together.

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