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5 Artful Considerations for a Successful Mediation

W hen working with outside counsel, the first question asked about mediation is: "Is it worth it?" In other words, is it worth our time? Our money? The answer to that question, assuming the other side is serious, is usually "Yes." And from our experience, you can make that answer a more definitive "yes" by taking a few practical steps.

1. Be intentional about time

It can be frustrating for a client — whether it is the person in charge of a business unit or an in-house counsel — to participate in a process where there is no sense of urgency. This can be particularly true in multi-day mediations where there is a perception that no one gets "real" with their offers until after lunch on the second day. Add that to the ever-increasing amount of fees and it is easy to see the desire to quickly get to the end game.

However, it is also true that some of the value from a mediation comes from the process itself. After several hours of sitting in a mediation room, it is not uncommon for a client to ask how many days they are going to be stuck in a courtroom if they don't settle the case.

The slow churn of the legal process can serve as a great motivator to find an acceptable compromise. Moreover, the process can serve as a reality check. Bold statements that seem like surefire winners at 10 a.m. may not seem so certain after listening to a neutral mediator's views of your case for six hours.

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So, how do lawyers balance these concerns? One consideration is being aware of this conflict when scheduling the mediation. While you do not want to rush through the process before lunch, it is worth asking whether the parties really need two days or more to mediate. In addition, preparing your business representative to express their individual and business concerns earlier in the process may help expedite matters.

2. Prepare your client in advance

Thoroughly preparing your clients goes beyond working through what they want to say — it is also about what they are going to hear. One of the long-standing theories of mediation is that it provides disgruntled parties their "day in court." It is a chance for them to air their grievances and to feel like they are being heard.

Corporate counsel and the outside attorneys with whom they partner must prepare their clients for that, explaining the importance of genuinely listening. Once the opposing parties have had the chance to vent and be heard, they are more likely to be ready to compromise.

Take the time in advance of the mediation to explain how the overall process works, how you intend to approach the mediation, and how long you expect it to last. Even with sophisticated clients, the desire to be done in a few hours can derail a mediation moving at a slower pace.

Moreover, many clients either do not understand or do not trust the shuttle diplomacy of the mediator. The right preparation can prevent your clients from getting frustrated and ensure they are at their best.

3. Make an opening statement

There is a trend in mediation to shy away from making an opening statement. We disagree with this approach. The opening statement in a mediation is the only chance prior to trial where you have the ability to speak directly to the other side about your case and why their position may not be as strong as they think, despite what their own counsel tells them.

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In theory, you may anger the other side by telling them why they will lose if they don't take this opportunity to resolve the dispute. But as we already mentioned, some venting from the opposing party can be a useful step along the path toward compromise.

You may also be thinking, "But the opening statement adds time." While this is also true, laying out the strengths of your case and the weaknesses of the opposing side makes the opening statement a smart investment of time.

4. Choose the right mediator

This may seem obvious, but it cannot be overstated how important the initial selection of a mediator is to a successful mediation. You can prepare your client for the process, you can read the room correctly, you can be the best prepared lawyer for your opening statement, and none of that may matter if you choose the wrong mediator. The process may not work if for any reason one or more of the parties does not trust the mediator.

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It is also important to understand that one mediator may be great for a particular case, but not in this particular case. Is this a case that requires a high degree of emotional intelligence and empathy, or will heads need to be knocked? Will the mediator either have a working knowledge of the subject matter or at least be willing to be educated on the topic? In-house and outside counsel need to work together to understand the needs of the particular mediation and be sure the right mediator is chosen.

5. Determine who is making decisions

People come to disputes with varying perspectives and motivations, and that is true not only between the parties but within your own. It is critical to determine who on the other side is calling the shots. Is opposing counsel driving the train, or is it the client? And what is their central motivation?

The answers to those questions, and addressing them appropriately, are often the key to getting to "yes" on a difficult settlement. This is especially true when the parties appear to be at an impasse. If you can identify who is the roadblock and what that person's motivation is, you can better target your arguments to break through to them — and ultimately ensure that the mediation was worth it.

About the Authors

Stephanie DriggersStephanie Driggers is global litigation counsel for UPS, a global transportation and logistics company with operations in 220 countries and territories. She is responsible for managing cases, arbitration, and mediation around the world.

John AmabileJohn Amabile is a litigator in the Atlanta office of Parker Poe. He has tried dozens of cases to judges, juries, and arbitrators; has represented parties in more than 200 mediations; and has resolved hundreds of disputes. [email protected]

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.