Amy Lieberman 0000-00-00 00:00:00
Mistake #1: Failing to Explain the “Give and Take” of the Process Busy lawyers who have been in mediations many times may not realize how unfamiliar and intimidating the process can be to one who has not been in mediation before. I can always tell when a party has not been prepared by their lawyer. They make an offer, or a demand – and stick to it. They have evaluated their case, reached a number they believe is appropriate, and put it on the table. They don’t move. The action leads to anger and frustration on the other side of the table, and rarely works. Stating an immovable position is not “mediating,” and lawyers react by using terms like “bad faith.” If that is the chosen course of action, mediation should not be the process of choice for your client. Prepare your client by explaining how the process typically works, in terms of the reciprocity of offers and responses. If your mediator has a particular style, include that in your explanation of the process as well. Mistake #2: Not Managing Expectations Urge your client to understand that the ultimate outcome may not be exactly what they plan for. They may learn new information they did not know before they came, or they may simply feel differently at the end of the day. The aim of mediation is not to “win,” but to “resolve.” The goal of mediation is not win/lose, or even win/win. I’ve heard lawyers call it lose/lose, but I view it, realistically, as “can live with/can live with.” Warming your clients up to that “can live with” notion opens their minds, helps to keep their expectations realistic, and increases the likelihood of success. Mistake #3: Not Calling the Mediator in Advance with Tough Challenges If you know ahead of time that you have a particularly difficult challenge in the mediation, with the other side, the other lawyer or even your own client, a pre-mediation call to the mediator helps immensely. Often a lawyer will say mid-way through the mediation, “My client has a totally unrealistic view of his case! I’ve been trying to explain but he just doesn’t hear me.” It is best to let the mediator know this before the mediation. If there are particular hard limits on authority, or there is a business issue that is critical, don’t wait until late in the game to tell the mediator. Mistake #4: Squashing Communication Let your client talk. At least, give him the opportunity. The mediation is the equivalent to your client’s day in court, and he may well have things he wants to get off his chest, directly to the other side. And, what he says, or how he says it, particularly if there is new information conveyed, or strong emotion associated with it, may help shift the way the other side responds. It is your client’s chance to be heard, to establish a connection, and even, possibly, to generate some compassion. Similarly, encourage your client to listen – to the other side, to the lawyer, to the mediator. He may well hear new information, or underlying interests that are different than previously assumed. The best advice a lawyer can give his client is to keep an open mind in the process. Mistake #5: Failing to Negotiate Credibly For Plaintiff ’s lawyers, this can mean starting astronomically high. If the demand is too far out of the range of reality, the plaintiff ’s credibility is impacted and future moves are viewed with skepticism. The Defendant may start equally unreasonably low. It takes much longer for the negotiations to get into the range of reasonableness. Also, it is hard to “unring the bell” for the plaintiff. All he will know is that he started at $1 million, and he has moved $500,000 – but the other side has only moved $50,000. This leads to great frustration. A second tactic of negotiation that decreases credibility is “tit for tat” matching of financial moves. There is a place for the synchronicity of moves, but if done too soon, it can tank negotiations. Such moves are best made for business reasons at the end stage of the negotiations. Be wary, too, of always pacing moves to accomplish a certain “split the difference” point. You may be assuming the other side is doing the same – but they aren’t. Negotiating as if all your claims or defenses are equally strong, when the other side and the mediator are both well aware of glaring deficiencies that are likely to have the argument kicked out on summary judgment, hurts your credibility in the process. Push hard on your strong arguments or your sound business reasons. Finally, if you are making an offer or a demand that you intend to be the last one, direct the mediator to communicate that as such. The other side should have fair warning before deciding how to respond. Mistake #6: Not Having Access to Full Authority Most defense lawyers meet with their clients, evaluate the case and have specified authority in advance. Where higher-level authority may be needed, it is vital to have ongoing communications with that person during the mediation, and to have access to them after-hours. This avoids the problem when the higher-level authority is on the east coast, and the mediation runs late. Given a choice, most people prefer to settle at the mediation itself, before anyone changes their minds due to outside influences. Not having that access decreases the likelihood of resolution. What Mediators Love – Intellectual Honesty Mediators know they are being played during the process. We expect it to a certain extent, and we certainly don’t hold it against you. Ultimately, though, what mediators appreciate is a frank and candid discussion of the strengths and weaknesses, along with other important factors, so we can help you reach a result that works for you and your client. The mediator is your ally. Our only goal is to help you resolve your case. You have chosen a particular mediator because you trust him or her. So, sooner rather than later, telegraph to the mediator the general result or range of where you would like to end up, so they can help guide the process towards reaching that goal, if possible. Let the bottom line wait until the very end, so you and your client can retain the ability to change it without losing credibility. Your turn: What are your top 5 mistakes you feel mediators make? Email them to me at email@example.com.
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