Lessons Learned From Mediation

5 hours ago

7 min read

a mediator considering lessons learned from mediation

Mediation Lessons: Every Mediation is Different

Mediations are not, nor should they be, cookie-cutter events. There is no such thing as autopilot for mediation. While legal cases can share a similar subject matter or theme, they are always different. Different facts, different times, different legal precedent, different clients, and different lawyers. Just as a lawyer cannot treat each legal case the same, a mediator must adapt mediation to each case as well.

Over the years, I made it a practice to note lessons learned after each mediation. This was a reflective practice where I compiled a list of what worked and what did not in a mediation. I continue to review this list before each mediation so I can incorporate these lessons. The goal is to evolve my craft over time to meet the needs of the lawyers and their clients.

This article will highlight some of those lessons and how I have adapted them over time. More importantly, as lawyers, you will see the unique challenges mediators face in each case and how we strive to address them. With this information, you too can use some of these techniques during mediation to prepare and help your clients have a more effective mediation.

Starting the Mediation

The vast majority of my mediations are conducted online. Back in the day, at the start of mediation, I would admit everyone into the main Zoom almost instantly. Most of the time, I would only know a few of the people and which side of the case they were on. As a result, I had to sort everyone out, one by one, while we were all together. Not only did this take time, but I soon began to think it could also be uncomfortable for the parties themselves. After all, they had just been instantly teleported into a Zoom room themselves, looking for familiar faces while being surrounded by their counterpart and opposing counsel.

Now, instead of letting everyone into the mediation at the same time, I first admit the Plaintiff's counsel and ask who is with them today. I then let them in and place them in their breakout room. Next, I admit the Defense counsel and then place them and their representatives into a separate breakout room. From there, I make it a point to go back to each room to greet everyone, review what I know about their case, and ask if there is anything else I should know that would be helpful for the mediation.

The entire purpose of this process is to make the start of the mediation as comfortable and seamless as possible. There is no jarring effect of the parties being together all at once and wondering who the other people may be. Instead, they are with their team and have had the opportunity to meet me. This keeps the group dynamic small, comfortable, and personal before we start the joint session. In my mind, this helps the parties start in a better frame of mind and allows me to build rapport and get to know them better.

Additional Lessons for starting the mediation:

Ascertain if there is a time limit for the mediation.
Get an early gauge from the parties on damages and liability to see whether there is a major gap in their positions.
Make it a point to ask and reaffirm what their objectives are for the mediation.
For purposes of efficiency, ascertain if only nominal offers will be made during mediation
Ask the parties about their goals and preferred mediation methods to see whether they care more about numbers and time than about analyzing the issues.
Humor can work to relax the participants

Opening and Joint Session

As a Florida Supreme Court mediator, I always provide a mediator's opening to advise the parties on the mediation process, its purpose, how it will proceed, the parties' roles, and how the proceedings are confidential. This is mandatory.

I have been, and still remain, a strong proponent of encouraging the parties to have a joint session where each side presents their case. I continue to believe this is an important component of mediation because it allows the parties to hear the opposing view of the case directly. There is a trend where parties want to dispense with a joint session and go directly to private caucus. The belief is that each side already knows the case well, and hearing from the other side might inflame the parties.

Naturally, if there are serious issues between the parties, or even past violence, I agree a joint session may do more harm than good. Outside of those extreme examples, my view is that skipping the joint session is a lost opportunity. To minimize the risk of a Joint Session going off the rails, I make it a point during my opening to cover best practices for preventing that. This includes the four tenets on my mediation challenge coin: lessons for active listening, using proper speech to share information, monitoring your own body language, and employing empathy to better understand the other side.

One should never assume that everyone knows the case well and that there is no new information to share. The joint session is all about exchanging information. Information is power and a tool that should not be voluntarily ceded when engaging in problem-solving. Likewise, dispensing with the joint session prevents the parties from humanizing each other so they can work together during the mediation to solve their common problem. Taking both information and people out of your toolbox just seems to me to make problem-solving that much harder.

Additional Lessons for Opening and Joint Session:

Always have the parties introduce themselves, and don't assume they know each other.
Jump in early if one party starts to go off on another party to avoid derailing the process (luckily, this has happened only twice in all of my mediations).

Private Caucus

I spend most of my time during mediation in private caucus with the parties. During private caucus, I check in on the parties to gauge how they are doing and what they think about what they heard during the joint session. This is when they process new information, identify what additional information is still needed, and they detail their differences and positions. While some differences and positions will never be reconciled during mediation, my job is to help them identify their interests and goals for the mediation. My job as a mediator is not to judge or determine who is right, wrong, or will be the prevailing party. If the parties want absolute certainty, that job belongs to the judge or jury. My focus is always on how I can help the parties explore options for resolving their dispute and whether they make sense for them.

By exploring options, we focus on the uncertainty the case presents and what the parties want to do about it now. During this time, I help the parties assess the case's risks and determine their risk tolerance. That is, engage in problem-solving to explore options for ending the case that day with certainty and what that will entail. However, before we can do that, I have to address any emotions in the room and let the parties express them first. Neuroscience is clear on this since an emotionally triggered party is literally incapable of engaging in this process until those emotions are dealt with. To do this, a mediator must actively listen and express understanding of those emotions and any resistance to solving the problem. Only then can they explore pragmatic solutions to resolve the dispute.

While doing this work with both sides simultaneously, I start to see whether there is a common zone or overlap in their settlement options. While I cannot and do not reveal what either side will settle for, I can certainly help coach or guide them toward possible common ground. When offers are exchanged, I ask for the basis for each offer so the other side can consider it objectively, and I engage in reality testing when it doesn't align with previous positions. If the parties seem on a path to impasse, I will ask each side what it will look and feel like if they do not settle. That includes what needs to be done next in the case, what it will cost, how long it will take, and possible outcomes. To help everyone make an objective final decision at mediation, I ask them to consider what will end up costing you more: settling the case today or going to trial. There is no right or wrong answer to that question, and each side can have a different answer. But the most important point is that each side objectively considers that and puts up their best and final offer before leaving mediation.

Additional Lessons for Private Caucus:

When parties use emotions, acknowledge them so they feel heard and understood.
Always ask for a reasonable basis for each offer so you can explain it to the other side.
Explore pragmatic settlement solutions versus seeking vindication at trial. Nothing is free, but what costs more?
Patience! Allow the parties to speak and answer questions without interrupting.
Always create a DocuSign mediation settlement agreement to finalize the hard work at mediation.
When there are competing brackets, propose the parties agree to use their midpoints as hard numbers for the next round.
Verify the accuracy of a party's documentation before advising the other side of its contents.
Never give up; persistence pays off. Never quit until both sides say no.

The Takeaway

Every mediation is different because the facts, the law, the parties, and the lawyers are always different. As a mediator, you have to be flexible enough to address each mediation differently and to evolve your practice to better serve the participants. Tracking what went well and what didn't during a mediation will help you grow and refine your craft. Lawyers who recognize the unique challenges mediators face can reverse-engineer the process to better prepare for mediation and prepare their clients for successful outcomes.

Less dispute. More resolution.