10 Ways to Make Mediation “Really Work”

So I guess the title grabbed your attention, and you are probably thinking that I made it up.  Nope! The question was asked and the statement was made thereafter.  As a full time professional neutral I hear this from litigants and attorneys often.  Usually the attorneys have had some bad experiences with mediation and even after attending a few, they are still unsure what mediation is and how to use the process effectively for their client.  There are also some sophisticated attorneys who have many attended mediation but have not embraced the mediation process because the process was conducted like a judicial settlement conference, therefore tagged a waste.  And Yes, I said mediation process, and not mediation hearing or settlement conference.  The term hearing is often used and if not directly used, it is indirectly implied by how litigants conduct themselves during the mediation.  Mediation is not a hearing, and to perceive it as such implies it is a court procedure, and that is where and how the mediation process gets misunderstood.  Mediation may not be suited for all case but I disagree with the idea that mediation is a waste of time.  The following hopefully will provide a different perspective and awareness of what the mediation process can be and how participants of the process can approach it:

Tips to Make Mediation Real and Work

  1. Know the difference between going to mediation and going to trial – Mediation is an opportunity to explore settlement options, not an event used to persuade and convince the mediator.  The mediator is not the finder of fact, even if that mediator is a former judge.
  2. Be honest about the emotions in the case – No matter what people want to say and believe, ego eventually plays a large part of the litigation process.  Hey, we are humans, let’s not deny that. And as humans we make decisions that are emotional in nature, even when you are advocating for a party, you are not void of being emotionally connected to some degree.
  3. Prepare for Mediation – Before you attend mediation it is always a benefit to have a pre-mediation discussions and come to mediation with a strategy of how you wish to set and present the tone of your position.
  4. Be realistic about the value of your case – Write down your wants and needs, creating two separate columns. Forces yourself to have a minimum of 3-5 items for each column.
  5. Come with an open mind – Mediation is voluntary.  Even if mediation is court ordered, understand that your “attendance” maybe mandatory, but to settle is not. So that being understood, relax and allow the process to be what it is, a process to explore resolution.
  6. Have the right attitude and expectations – Although you may be involved in litigation, to approach a mediation with an attitude where there has to be a winner and a loser, sets a tone where it is a challenge to “see” settlement where you give more than you want, or receive less than you think you should.  A good attitude and open expectations will help you realize resolution sooner.
  7. Be Flexible – Mediation is Confidential, so understand that it is ok to be as flexible, and as reasonably creative, as possible. You can not be held to anything unless and until there is a written agreement executed by both parties.  The worst that can happen is an answer of “NO”, so then you try again.
  8. Prepared to be heard and not just seen – Mediation is often the first time the party/client has an opportunity to voice their wants and needs in their own words. In some instances this can be very useful in negotiations and aspects of the mediation process.
  9. Make sure all of the appropriate parties attend – A mediation settlement agreement means nothing if you do not have the appropriate decision maker there to sign.
  10. Plan to be there and be engaged – Distractions and poorly planned mediation scheduling can destroy negotiations.  So if you are scheduled for a 3 hour mediation, plan for 4 hours. That way you are approaching negotiations and writing the agreement with the right time frame of mind and the sufficient time to prepare the agreement.