By Mediator Lee Wallace
Want to be better at mediating? Here are seven classic mistakes that you DON’T have to make.
1–Setting an argumentative tone at the opening conference.
At trial, you win when a jury says you do. But at mediation, you win when the other side says you do; unless the other side agrees to a settlement, there isn’t one. So keep the impassioned arguments and finger-pointing bottled up for now; you will have time enough to unleash your inner trial lawyer if the case does not settle. At mediation, you are far more likely to get what you want by maintaining a calm and non-confrontational demeanor, even when you are being firm.
2–Not disclosing damages information to the other side in advance.
If you represent the plaintiff, you should update your damages information at least a week or two before mediation. You want the defendant to show up at mediation with authority to settle the case as it currently stands, not as it stood at the time of the original demand letter. If you hold the information until mediation, the adjuster may not be able to track down the people who can give her more authority to settle the case. Worse, some adjusters won’t even try, because they are embarrassed; nobody wants to tell her boss that she undervalued a case, especially before mediation has even gotten underway. If you give the defendant the information they need in advance, they can come with authority that matches the insurance company’s valuation of the case as it actually stands.
3–Not enlisting the help of the mediator.
Any mediator can carry numbers back and forth, but a good mediator should be able to do much more. Are the parties at each other’s throats? Do you have a difficult client who is not listening to reason? Enlist the mediator’s help, in advance if possible, to increase your chances of settling.
4–Not preparing the client.
You want your client to arrive ready to settle the case — the actual case, not the one she wishes she had! It takes time for people to adjust their thinking, and many people have trouble making big shifts during the course of a one-day mediation. So give your client an honest, no-holds-barred evaluation of her case before mediation; make her aware of the good AND the bad and the ugly about the case.
5–Mediating too soon.
To reach a settlement at mediation, both parties need to feel comfortable that they understand the facts and can make a reasoned evaluation of the case. For some cases, that point comes early in the litigation or even before litigation starts. But this factor is case-specific and party-specific; you don’t want to mediate until both parties feel they have the information they need and are emotionally ready to fairly evaluate the case.
6–Not bringing the person who has authority to settle.
In a cost-cutting effort, some insurance companies have stopped sending adjusters to mediation. And in business cases, some parties leave the high-level corporate executives back at the office, reasoning that their day-to-day jobs are too important for them to spend time at a mediation.
Leaving the decisionmaker back at the office seriously undercuts your chances of settling the case. It deprives the person of first-hand knowledge about the other party and about the case that could help the person make a rational decision about settlement. And in the end, the executive may save one day at mediation, but wind up spending several days at trial.
7–Mediating without disclosing key information to the other side.
At mediation, each party will evaluate the case and try to assess its fair value. If the assessments overlap, the parties can settle the case. But the parties have to be trying to settle the same case; if one party has information that the other does not, it’s far less likely that the assessments will overlap, or that the case will settle.