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If Mediation is so successful … Why Do Many Still Fail?

Failed mediations are generally the result of poor preparation. Spending sufficient time in advance lets both lawyer and client get the most out of the process.

Mediation is certainly faster, less formal and less costly than litigation, however it still takes preparation. As with traditional litigation, pre-trial and formal arbitration, the results reached in mediation largely depend on what the parties and their lawyers have done ahead of time. One of the most important aspects of meaningful preparation is selecting a mediator appropriate for the dispute. Equally important for a lawyer seeking a good result is educating the client about the process. Effective mediation advocacy also requires careful attention to materials that will be submitted to the mediator or exchanged between the parties before the mediation.

I think of mediation as a soft process, rather than the rigidity of civil procedure. The process can be anything the parties want it to be. The choices range on a continuum: At one end is a strictly facilitative mediation (sometimes called a “true” mediation), where the mediator simply helps the parties negotiate a deal. At the other end is a strongly evaluative mediation, closer to a traditional settlement conference, where the mediator expresses opinions about the parties’ positions, the evidence and the law.

The starting premise, of course, is that the parties have (or will have by the time the mediation starts) enough information to intelligently evaluate their cases. In many cases, this requires that an examination for discovery has been completed and most if not all undertakings have been provided.

One of mediations greatest advantages is the control the parties have over who the mediator will be. To select a mediator simply because their schedule matches that of the parties, but where this individual has limited or no expertise in the area of law being litigated, is a session destined for failure or very limited success.

Among the several significant factors that should be considered in selecting the mediator are mediation style, training, experience and areas of substantive expertise. For example, some mediators rely heavily on separate caucuses to move the process along, others do so only when asked and a few actually discourage the approach. Similarly, different mediators require different kinds of pre-mediation submissions. Knowing a mediator’s preferences in these areas helps not only in choosing a mediator but also in preparing the case for the mediation.

It goes without saying that the Plaintiff must attend the mediation session. Rule 24.1 require the final decision-maker – the person whose presence is truly necessary to reach a full settlement of the dispute – must be physically present. Or with the consent of the other party, be available by phone. In cases where the Defendant is represented by an insurance company, a person with authority is required to be present and hopefully become engaged while in caucus.

Recently, my mediations have included an individual with direct knowledge of the Plaintiff or even an expert present in those cases of a highly technical dispute. Much as a mediator with subject-matter expertise can provide a reality check to the parties, a true expert can educate everyone. But the expert must understand that they are there to provide a balanced opinion to all parties and not to give one-sided opinions as we find in a hired gun.

Helping the client understand how mediation is different from litigation or arbitration is critical. To make the process work to their advantage, clients need to understand the differences in the roles of the neutral, counsel and the parties. The client should be told that the mediator is impartial, has no decision-making authority, will maintain confidences and will likely play the devil’s advocate in testing the weaknesses of each side’s position. Counsel should also brief the client on the mediator’s training, experience and reputation.

The actual mediation process should be reviewed with the client. This includes the pre-mediation submissions, the introductory phase, the opening statements, the joint and separate caucuses and, in most cases, the memorandum of agreement. The explanation should be such that, when the mediation actually occurs, the client will understand exactly what is going on and why.

When explaining the client’s role, the practitioner must first evaluate how active the client should be in the mediation. This depends on such things as the client’s skills as a communicator, the need for the client to “vent” by telling his story before seriously negotiating and how effective the client will be with the other parties and their counsel. An articulate client who actively participates in these aspects of the process can be extremely effective.
Finally, clients should be encouraged to listen, evaluate and, above all, keep an open mind during the mediation.

It is very helpful to make your mediator aware of prior settlement discussions and a brief discussion of any subjective factors that bear on the parties’ prospects of reaching resolution. Time spent preparing a concise and persuasive mediation statement and reviewing the statement with the client will significantly increase the likelihood of a successful mediation.

Failed mediations, like unsuccessful trials and arbitrations, are generally the result of counsel’s poor preparation. Selecting the most appropriate mediator, determining who should attend the mediation, educating the client about the process and spending time to prepare persuasive pre-mediation submissions will allow the practitioner to make the most of mediation and to get the best results for clients.