By Mediator Lee Wallace
As a mediator, I once successfully finished a mediation in just an hour and a half! In fact, we ordered lunch when we started the mediation at 10 a.m., but finished long before it arrived.
Most mediations take longer, and they should. Mediation is a once-in-a-litigation chance to solve tough, legal problems without going through the time, expense and uncertainty of trial. The stakes are high for your client, so your goal is a successful mediation, not just a fast one. But those parties did a lot of things right that enabled them to get the case resolved that day.
Here are the things that they did to smooth the way to settlement.
1. The parties came prepared.
In the world record, hour-and-a-half case, I was working with a plaintiff’s lawyer and his paralegal who always prepare a beautiful demand package. The package has all of the information that the defendant needs to figure out the value of the case. It includes the accident report, a summary of the medical bills and damages, and the medical records and bills that support the claim. The plaintiff’s lawyer sends the package to the defendant long before the mediation.The defendant also was prepared. The insurance adjuster and the defense attorney had read and analyzed the package and the damages. They came ready to discuss the value of the case.
2. The defendant sent someone with authority to the mediation.
The insurance adjuster came with the full authority to settle the case. She did not have to call back to the office to get approval as she negotiated. Because she was present, we were able to move quickly during the negotiation phase.
3. The parties gave me materials so I could prepare in advance.
As a mediator, I like to come prepared. In this case, the plaintiff’s counsel sent me the Complaint and the demand package before the mediation. I read everything thoroughly in advance. As a result, I was ready to go when the mediation started. Because I already understood the facts, I also had fewer questions, since I already understood the key issues that were standing in the way of settlement.
4. The parties came with open minds.
Both parties need to be open to learning something new and relevant during the mediation. No matter how thorough you think your discovery has been, in mediation, as in litigation, you have to expect the unexpected. In this particular instance, at mediation the plaintiff offered some personal information that the defendant had not known in advance. It was important information that significantly increased the plaintiff’s jury appeal. Because the defendant had sent an adjuster who had the authority to settle the case, the adjuster was able to factor that information into account while we were sitting in the mediation. She was flexible enough to take into account the facts, even ones she was learning on the spot.
5. Each side acknowledged the positions and concerns of the other.
One of the most powerful tools you have in mediation is the simple act of affirming that you have listened to and understood the other side’s position. The insurance adjuster in this case was particularly good at doing that. With each move she made during the negotiations, she made a point of asking me to communicate that she understood that the plaintiff’s pain and suffering was real. Her attitude set the tone for the mediation; the parties were working together to come up with a solution to the litigation.
Using the same techniques these parties did, you can make your next mediation as productive and successful as possible.