Blackman ADR Services

Why Mediate?

There are four main reasons why mediation is effective as an alternative to unguided negotiations:

First, the process has special confidentiality rules that allow the parties to be forthcoming and flexible by barring both sides from exploiting or misusing statements or offers of compromise that would not be made in an open setting. 

Second, partly as a result of the confidentiality rules, the mediator can learn about attitudes, interests, and negotiation goals that are critical to finding a solution to the dispute, but which parties do not wish to reveal to the other side.  This allows the mediator to determine whether the gulf between the parties' positions is actually as wide as it appears (because everyone anticipates that they have to ask for more than they expect in order to end up with what they need).  Knowing that the parties' positions are not so far apart as might otherwise appear allows the mediator to guide the parties toward agreement in a process that permits strong bargaining but does not result in unnecessary or false impasses. 

Third, the perspective of a neutral observer with experience evaluating legal and factual positions -- expressed directly or through probing questions -- generally allows the parties to come to a more rigorous and reasoned assessment of weaknesses of their cases and the risks they face in litigation without those weaknesses and risks being revealed to the opponent.

Finally, mediators have a range of tools, skills, and experience to facilitate discussions, explore alternative resolutions, and help the sides become better and more effective negotiators.  The mediator often learns things he can't reveal but which can allow him to help the sides avoid conduct or positions or negotiating styles that detract from the effort to achieve a resolution.

How Do I Propose Mediation Without Showing Weakness or Compromising Our Side's Leverage?

John Kennedy said "Let us never negotiate out of fear. But let us never fear to negotiate."  Simply stated, it does not show weakness to raise mediation as an alternative to litigation.  It shows good sense. 

What shows weakness is an ill considered, ill timed, or poorly presented offer of compromise.  A mediator can introduce the process and help the parties frame their opening positions so that they show the right balance between standing up for what they believe and avoiding unnecessary expense. 

Most lawyers involved in litigation also know that the Court will, sooner or later (usually sooner), order the parties to mediation.  So it does not show weakness to raise the issue early.  It shows experience. 

Most lawyers also understand that a settlement before substantial time, expense, and distraction have been incurred is worth a lot more than the same settlement after all those burdens have been incurred.  Clients understand it even better.  So lawyers who care about client service and client relations raise mediation early both because it's a good idea and because most clients appreciate it.

How Do We Prepare For Mediation?

Effective mediation preparation involves two related areas: preparing the case and preparing the client (or yourself) for the process. 

Preparing the case is the easy part.  That's what the lawyers, with the client's help, have been doing since the parties first realized there was a dispute: (1) know what the law requires you (and the other side) to prove to win, (2) assess what the essential evidence will reveal if the case is tried, and (3) evaluate the range of recoveries you can reasonably expect if the evidence is admitted as you expect, and the judge or jury gives it the credit you think it's due. Be prepared to summarize your view of the law and the evidence, and why you think it's compelling from your point of view.  But once you have these basics covered, move on to preparing the people.

Preparing yourself and the client (if you are the lawyer) for the process is the hard part.  Mediation is not like a motion or an argument or a trial.  Success in mediation does not depend on the lawyer's or client's ability to convince the other side or the mediator of the strength of their case.  Success in mediation depends on deciding what's important (and what's not) and defining realistic objectives.

Lawyers should make sure their clients are aware that the mediator's job is to explore and assess your side's weaknesses, your risks if the matter is not settled, and to illuminate what he sees as the other side's strengths.  Tell the client that the mediator is doing the same thing when he meets confidentially with the other side.  Tell the client to think about the mediator's questions and comments and be prepared to respond as effectively as possible.  Give the mediator ammunition to use in telling the other side why an apparent weakness in your case is not a weakness at all.  Why an apparent strength in your opponent's case is not what it appears.

Have a negotiation plan and be prepared to discuss it with the mediator, but be prepared to be flexible.  Be prepared adjust your plan as your assessment of you case evolves.  Look for ways to trade things that aren't important to you (but are important to the other side) for things that are important to you (but which are not important to the other side).  Think about relationships and creative ways to add value to a settlement by agreeing to do things the court or arbitrator cannot do by an order. 

Finally, prepare to be calm, to accept insults gracefully (because there will be real and perceived insults), and to maintain a positive and persistent attitude.

And read Ten Pillars for Lawyers Preparing to Mediate the Litigated Case, http://www.scmediation.org (2015).

Should I Prepare A Mediation Statement And What Should It Contain?

If you read the discussion of How To Prepare For Mediation, you'll get a sense of how a Mediation Statement differs from a motion or an argument.  One of your objectives is to provide a short summary of the legal context and the evidence you expect to be presented. This part of your mediation statement should be shared with the other side because there is always value in moderating the other side's expectations and because the mediator needs be able to discuss your basic views of the facts and law with the other side.

Rebuttal evidence and matters you want to reserve for impeachment should be the subject of conversations that are clearly designated confidential.

But the key to an effective mediation, and thus the key to using the mediator to your best advantage, is in clarifying your interests and objectives in the mediation and identifying proposals that can make the ultimate settlement more favorable, or at least palatable, to the parties. 

The mediation statement should also contain a detailed summary of all of the efforts that the parties have made toward settlement, including demands, responses, personality conflicts, false starts, and issues that affect trust and confidence in the participants. 

Why Blackman ADR Services?

There are many former judges and many talented, experienced, and highly regarded lawyers who are excellent mediators.  Affiliated with the main stream dispute resolution services, they can also be expensive, difficult to secure, and unwilling to be as persistent or creative or committed as needed to get to the end of a negotiation. 

Blackman ADR Sevices is committed to providing the best overall balance of skill, experience, accessibility, persistence, temperament. intellectual capacity, creativity, work ethic, and low cost.  Contact us for the names of participants in earlier mediations if you need to assess our willingness to go the extra mile and our mediation skills. 

And contact us for ways to accomplish your mediation objective at a fixed cost that meets your budget.

Have another question, or comment? Please contact us anytime!