5 “Musts” for Effective Mediation Negotiation
Over the years, I have participated in hundreds of mediations. As a mediator, I have helped parties resolve complicated disputes. As a lawyer, I have represented claimants in cases involving personal injuries, business disputes, and insurance claims. I have seen mediation from all sides.
The ultimate goal of any mediation is to reach a resolution. Whether it is a “fair” resolution is up to the respective parties. As a mediator, my goal is to communicate the resolution options and help all parties evaluate the risks and benefits involved in their dispute.
From these experiences, I have come up with Five “Musts” for Effective Mediation Negotiation:
(1) You MUST Prepare Your Clients:
Before mediation, spend some time talking with your clients to explain the process, discuss the role of the mediator, and begin the process of setting expectations. When you spend the first hour of your mediation explaining the mediation process to your clients, that is time that is wasted.
Spend time preparing your clients on what they are going to hear. So many times, the parties will be “insulted” by the first offers/demands in a case and will immediately deem the process a “waste of time.” If you spend some time preparing your clients, you can hopefully avoid the early fight about whether mediation was even worth the time.
(2) You MUST Pick the Right Time to Mediate:
Before you agree to mediate, make sure you know the full extent of your client’s damages. There is nothing worse than finding out about new issues at a mediation.
On the other side of the coin, set up a mediation before you spend thousands upon thousands of dollars on experts or case expenses. There are times when case expenses are so high that there is no reasonable way to get the case settled.
(3) You MUST Know Your File:
This may sound ridiculous, but there are way too many instances where lawyers walk in with only a vague familiarity with the issues in their cases. This is particularly true in smaller personal injury cases. Clients will turn on their lawyers in an instant if they even appear unprepared.
Know your clients. Know the facts. Know the damages. And if there are any specific legal issues that may complicate a file, bring a few cases that would address those issues. This not only helps the communication process at mediation, but it also avoids the complaints by clients that their lawyer didn’t care or was not prepared.
(4) You MUST Plan Your Negotiation Strategy:
When evaluating your case, know what your best-case and worst-case scenarios would be in your given case and in your given jurisdiction. Study up on past verdicts and case results. Know where you want to start your negotiation. Know the range of where you would like to end up. And communicate all of this with your client (preferably beforehand).
If you do not have a strategy in mind beforehand, you are aiming at an imaginary target. Write down where you would like to end up and adjust your moves accordingly. Your clients and your cases will be better served with a target and a plan on achieving that target.
(5) You MUST Listen:
First, you must listen to the other parties in the case. One of the benefits of mediation is the opportunity to learn what the other side may deem to be the most important issues. Many times, if you listen, you will hear the trial strategy. If the case does not settle, you will know some legal issues or fact issues that will need to be addressed in your case.
You must also listen to the mediator. A good mediator cannot tell you everything that is said by the opposing party. Confidentiality is key. That said, a mediator’s job is to make you think more deeply about the strengths and weaknesses of your case.
One last MUST…
You must be willing to do what you say you are going to do. Too many times, lawyers spend their mediation time puffing, bragging, and making threats about what they will do at trial. As a mediator, I personally let the lawyers show off for their clients. But, ultimately, if you talk too much and produce too little, your clients will leave feeling dissatisfied.