FIVE KEYS TO SUCCESS AT MEDIATION

By Blane McCarthy, Jacksonville Bar Association Board of Governors
Published in the Jacksonville Bar Bulletin / Jacksonville Daily Record
March 7, 2019
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As a Certified Circuit Mediator for over eighteen years, I am often asked how to make the Mediation experience a success. My recent presentation on this topic to the Jacksonville Bar Association’s Probate Committee has truths that apply to any type of mediated dispute.

“Success” is understood as advancing or achieving a goal. Before one can employ methods for experiencing success, one must identify the goal to pursue. While dispute resolution is the most common, it is not the only goal of mediation. Others include obtaining informal discovery, presenting a “show of force”, purposefully underwhelming your opponent to inspire a false sense of security, learning the best offer/demand, assessing risk, and even simply complying with a Court Order.

Presuming that your goal is dispute resolution, here are five keys to having a “successful” mediation. As with most life ventures, one must prepare, prepare, prepare.

Key 1 = Prepare Your File. Review all relevant data and documents before your mediation conference. Have all pertinent items with you at the conference, organized so that questions can be quickly answered. Whether you are truly paperless or paper less, bring your laptop or tablet along with your physical file. Preparing your file not only reminds you of salient details, but also accurately conveys an aura of control, knowledge and preparation that will impress your adversary, the mediator and, most importantly, your client. A sloppy lawyer with a sloppy file does not earn favorable client reviews or former client referrals.

Key 2 = Prepare Your Client. You need to set appropriate expectations for your client, who is likely inexperienced in mediation. Meet with your client before the mediation, to ensure you both are in agreement on strategies and goals. Warn your client about the negative factors that will likely be raised by the other side. Eliminate “bottom line” mentality and foster in your client’s mind negotiation flexibility, so that the mediation process can have maximum impact.

Key 3 = Prepare Your Mediator And Your Opponent. Despite the local Administrative Order directing otherwise, I rarely get Mediation Statements. While mediators can adapt to flying blind, most opposing parties cannot. If your goal is to resolve the claim, send a Mediation Statement early, to the Mediator and opponent. Prudent parties evaluate a claim’s value and risks well in advance of the actual Mediation Conference. If you have powerful documents or information that impacts the claim’s valuation or risk potential, share it early and in writing. Delivering a smoking gun at Mediation will rarely result in a settlement at that Mediation conference. Save your surprises for birthday parties, not Mediations.

Key 4 = Allow Your Client His/Her “Day In Court”. Given that very few disputes go to trial, your client will rarely get a true day in court. Let Mediation serve that purpose. While you may wish to control the messaging in joint session, allow your client to freely share during the private caucuses. Mediation is not a spectator sport, so don’t relegate your client to that role. The more your client participates in the conference, the more likely he/she will be to agree to the outcome.

Key 5 = Close The Deal. A mediated settlement agreement is worth nothing if it is not enforceable. If reaching a resolution is important, memorializing that agreement is imperative. Ignore your fatigue or growling stomach. Finish the task right then, not some later time. You worked hard to reach an agreement. Make sure that hard work is not wasted by procrastinating on the final, culminating task.

An effective Mediator adds great value, perspective and momentum to settlement dialog. But true “success” at Mediation is not likely achieved unless a well-prepared lawyer has a well-prepared file and a well-prepared client, whose participation contributes to an outcome that is memorialized before the parties leave the conference.

Blane McCarthy is a sole practitioner who represents injury victims and serves as a Certified Circuit Mediator.