In preparing for a September presentation at the Annual Meeting of the ADR Section of the State Bar of Michigan, I have had the good fortune to work with a panel of experienced, talented, and respected litigators (Katherine Smith Kennedy, Michael S. Leib, and Lawrence J. Murphy) who will address the topic of the worst and best practices of mediators. While virtually every mediator can readily provide a compendium or favored “Ten Tips” for litigators to follow during the mediation process, perhaps too little discussion has been devoted to mediator practices that enhance the potential for a successful mediation. Let’s have that discussion and continue the dialogue in future blogsI
Evolving research and studies, as well as my preliminary discussions with the September ADR panel presenters, emphasize that the selection of the “right” mediator is the most important step on the journey to a successful mediation. As the data and my conversations have reinforced, qualified mediators possess certain critical characteristics:
- Knowledge of the subject matter
- Presenting neutrality throughout the process
- Ability to engender trust
- Ability to use candor when and where appropriate
- Ability to manage expectations
- A good listener.
I want to focus now on preparation.
The age old debate whether “subject matter” expertise is essential for the effective mediator becomes virtually meaningless if the mediator, regardless of that expertise, is not prepared for the mediation. While the checklist may vary depending upon the complexity, nature of the case, and the sophistication of the parties, the prepared mediator will typically evaluate before the day of mediation:
Whether the parties and counsel are prepared for the mediation or if there is additional information a party truly needs to engage in a meaningful mediation. This step is increasingly important as more Michigan trial courts are inclined to order early ADR and no one wants to waste their time and effort by participating in a futile mediation with counsel and parties who truly need additional critical information to make informed settlement decisions.
All the written materials submitted by the parties and consider with the parties whether all submissions will be exchanged (generally preferred) and if other pertinent information is submitted for the mediator’s eyes only.
Whether everyone is comfortable that the correct individuals with settlement authority will be physically present at the mediation. If not, the likelihood of a successful mediation will be significantly reduced.
The “interests” of each party in resolving the dispute. What is the back story to the dispute?
The history of settlement discussions along with an understanding (or at least laying the groundwork for a future discussion) of who will make the next or initial offer or demand. Too much time can be spent at many mediations negotiating “who will go first.”
The procedural state of the litigation and significant upcoming litigation events.
Each party’s identification of the impediments to a potential resolution.
Obtaining input on “process,” i.e., the advisability of a joint session, when joint sessions may be most appropriate, whether opening statements will be of assistance, what issues will be addressed jointly or during a caucus, etc.
Any attorney concerns with the process including any client control issues and any assistance the mediator might provide in managing unrealistic expectations.
Preliminarily exploring whether the parties have developed a tentative negotiation strategy and discussed options with the client including the identification of those non-economic terms that may be particularly important. Counsel may be asked to bring to the mediation a draft settlement agreement that sets forth all of the non-economic terms that are important to the achievement of a resolution.
Initially evaluate whether the negotiations will be primarily distributive, integrative, or both and give consideration to creative options that might be proposed should the parties be heading toward an impasse.
Whether the attorneys and their clients would benefit from directive opinions and evaluations from the mediator or prefer more facilitative risk analysis and non-judgmental reality testing and questioning.
Determining each party’s goals and aspirations for the mediation process. What would the client like to see happen on the day of the mediation?
Whether there are any factors that might call for an atypical mediation process that requires further discussion (i.e., should certain persons not be present during a joint session, does a party need a statement of regret, will a joint session be counter-productive without additional mediator coaching of a party, is opposing counsel given to bullying or intimidating tactics, are there unusual emotional issues at play, will there be a need for additional mediator coaching to ensure each party is prepared for the mediation, etc.).
All of these issues can be readily, efficiently, and economically explored by the mediator through a combination of joint and individual calls with counsel prior to the date of the mediation. In fact, the time and energy involved will result in significant savings in the time set aside for the mediation. As Benjamin Franklin observed, “An ounce of prevention is worth a pound of cure.”
Every mediator will readily advise the parties and counsel it is important for them to be adequately prepared for the mediation. According to the panel of litigators with whom I’ve spoken, it is just as important for counsel to select a mediator who will be similarly prepared – research and studies demonstrate it does make a difference. Indeed, counsel who believe these or other issues are important to the mediator’s preparation before the mediation might take the initiative by calling the mediator to ensure these or other pertinent issues are addressed during the mediator’s preparation.
I would truly appreciate any and all thoughts and suggestions you might have on mediator “best practices” you have encountered. Please feel free to e-mail me with your suggestions and, with your permission, I will gladly incorporate these thoughts in upcoming posts.