Why? I Mediate: Meaningful Mediation

Patrick Russell
7 days ago
3 min read

scales of justice with question marks on each scale

As a seasoned lawyer and now as a full-time Florida mediator, I believe mediation can help parties efficiently resolve their disputes with certainty, reducing the risk of an adverse outcome, while saving time, money, and the stress of continuing a legal case.

I mediate to help people solve problems, resolve disputes, and move on with their business and lives. In doing so, my goal as a mediator is to help the parties decide whether a mediated settlement is a better result than a future trial. There is no wrong or right answer to that question, as every person and case is different, and each can draw a different conclusion.

However, I believe that to have a meaningful mediation, the parties should make an informed and rational business decision about whether a mediation settlement makes sense versus having a trial decide the case's outcome. This requires a candid discussion during mediation that analyzes risk, manages expectations, and considers the costs and time required to continue the legal case. If you agree, read on to see how I do this and what you can get through a mediation with me.

How I Mediate

graphic with the three pillars of success for mediation including rapport, assess risk, and managing expectations

How I mediate is guided by the underlying goal of having the parties make informed, rational decisions during mediation.

The first step is to build rapport with the parties so they can not only trust me as their mediator, but also trust the mediation process itself, and then eventually each other when possible. This crucial step is easier when the parties are encouraged from the start to listen non-judgmentally during the mediation, to share information, and to engage in problem-solving rather than blame. When trust is established amongst all, candid conversations can take place, and the information needed to assess and make good decisions is exchanged.

The second step is to encourage the parties, either before or during the mediation, to conduct a risk assessment analysis for the case. This assessment should be objective and map out the various probabilities of the likely outcomes in the case. The risk assessment does not need to be overly complex, but should include probabilities of liability, verdict amounts, and the legal fees and costs required to reach a trial outcome. The result of the risk assessment establishes the case's future value after trial. This information is ultimately needed for a party to evaluate and compare settlement offers made during mediation to the case's future value after trial.

The final step is to help manage the expectations of the parties and assist with their negotiating strategies when requested. A party that enters mediation with unrealistic expectations about the outcome of the case will have a very difficult time during negotiations. This party will remain anchored at a number, and every concession from that number will seem very painful and personal.

One easy way to manage expectations is to have a candid discussion about the case's risk assessment, so that expectations are grounded in reality. Likewise, the parties should be encouraged to start with reasonable opening offers, and subsequent offers should be made on a rational basis and not appear arbitrary. Finally, the parties should have a negotiating plan that includes a reasonable opening offer, their bottom line, and the moves to reach it.

What You Get

mediation challenge coin for meaningful mediation

When this process is followed, the parties will have a meaningful mediation. A meaningful mediation in which they have rationally assessed their case and made an informed business decision as to whether to settle it during mediation or proceed with a trial.

Such a process can enhance mediation outcomes and ultimately lead to more efficient resolutions of legal cases that manage risk, while saving money, time, and the stress of continuing a legal case.

Less dispute. More resolution.