Even the most confident and experienced lawyers and claims professionals probably feel a little uncertain when they walk into a mediation meeting room. No matter how prepared you are and how many times you’ve been in the same situation, you can never be certain how a session will play out. The particular facts of a case, the mix of the people involved, and how they react to offers can lead you down unexpected paths.
Young lawyers and new claims professionals who have only participated in a few mediations may wonder how they can quickly master this tool of dispute resolution to get the most benefit for their clients or meet the needs of management. Thankfully, experienced mediators are often willing to share tips that will help counsel and claims professionals make the most out of these sessions.
In this blog post, I consider some frequently asked questions and topics and offer suggestions for how to best prepare for mediation and how to respond to some common issues that arise during mediations.
Managing Expectations
The key is managing a client’s or management’s expectations before, during and after the mediation. Good communication skills are essential as you will need to be transparent and straightforward the entire time to avoid unpleasant surprises. It’s important to ensure all terms, including costs, disbursements and mediation fees, are discussed from the beginning and as you make and receive offers. Be clear and straightforward when speaking with your mediator to avoid any miscommunications that could cause problems with negotiations. And, finally, make sure you have proper and clear instructions each time you are presenting or accepting an offer, and signed instructions when getting down to the final offers.
Openings In Mediation
Whether or not to have an opening is usually case specific. An opening may not be appropriate if negotiations are already underway or the parties involved do not want it. In a lot of my practice areas (insurance, personal injury and commercial) opening statements can be helpful. They set the stage, allow parties to get a good picture of where each party is coming from and what they want to accomplish in the mediation. Effective opening statements emphasize the strengths of your case, meet the challenges named by the parties involved head on and demonstrate a willingness to negotiate in good faith during the mediation.
Considerations On Your First Offer
There are lots of moving parts to keep in mind here: negotiation strategy, a client’s or management’s needs/expectations, length of mediation, number of parties involved, knowledge of the parties involved including decision makers, past settlement discussions and objectives for the meditation. Coming up with an opening offer is always a battle between starting off high and coming across as “unrealistic.” I always suggest counsel keep in mind the question: where will we be after this offer is made?
How To Handle Impasse, Bad Behaviour and Fatigue at a Mediation?
That’s a big question! Let’s look at it in parts. If there is an impasse, counsel should be open and straightforward with the mediator about what is happening. Is it the right time to use your mediator to speak with the plaintiff or the other side or to arrange for counsel and the mediator to speak together? The mediator will be working to figure out what is causing it and what’s the best way to handle it. And, I believe curiosity always comes in handy here. Think about what might be going on and ask some questions to determine if you see a way out of it. For bad behaviour, I advise ignoring it or using a ‘name it to tame it’ strategy to curtail it or stop it. It can be challenging to ask the mediator to take on the other side but you can enlist their assistance to show the behaviour is not helping. Finally, know your own comfort zone and the level at which the behaviour makes it necessary to walk away. For fatigue, it’s always wise to monitor energy levels and take a short break to help reset things. Also, you might consider smaller sessions over a few days that continue over email with the mediator.
Benefits and Limitations of Caucusing
Caucusing gives parties the opportunity to work with the mediator to advance their case. You can gain a better understanding of where the other parties are at the moment, work with your client to manage expectations, evaluate offers and execute and adapt your negotiation strategy. In terms of limitations, if you are spending a lot of time trying to convince the mediator to be on your side or how your numbers are the right numbers you are not spending your time efficiently. There also may be questions from other parties about the lack of efficient use of time. It can impact other parties’ perceptions and assumptions if they feel like you are not prepared.
Conclusion
All of these questions/topics arose out of a recent webinar run by the Ontario Bar Association in which I was a panelist. As an experienced mediator, I’ve heard variations of questions on this topic many times before. Excelling at mediation means you have access to the tools and knowledge you’ll need to feel prepared and confident to handle what may come your way.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at admin@schnappmediation.com or (647) 250-7216.
