Legal experts are continually publishing studies on the practice of mediation and what works and what doesn’t during the negotiation process. A recent study focused on the mediator himself and asked the question: What does the mediator really wanted to hear from both sides? The answer follows, allowing you — party’s counsel — to be aware of the mediator’s point of view when heading into the mediation room.
Here is what to do, and what not to do, when meeting with your mediator:
Unless you contemplate a joint session in which you are going to address your remarks to the opposing party, forget the fancy Powerpoint or video presentation. According to mediators, these presentations are often “boring and pedantic.” Yikes! Even if you manage to turn it into a Hollywood drama, with the emotional overplay you run the risk of irritating the mediator. So what works? Many experienced mediators express the view that photographs and chronologies often help to quickly understand the facts.
Number 2: A mediation is not a competition. Try to view the negotiation process as a joint problem requiring a solution and not as a Braveheart-worthy battle, with you against them. Therefore it’s crucial that you, counsel, talk to your client about the objective of the mediation. Make sure to create an open dialogue between you, your client, and the mediator. The mediator is certainly not off limits to your client, so let your client know that the mediator is going to discuss the case directly with the client .
Now for negotiating 101: As a lawyer, when you’re negotiating, don’t be a “one-trick pony.” Use the toolbox that your experience and practice has given you and forgo using the same negotiating tactic over and over. What works with one in one case may not work in another . Flexibility is an extremely important mediation-characteristic.
Bruce A. Friedman is a skilled mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met: justly and efficiently. For more information on the mediation services that Bruce provides, check out his bio on ADRServices.org and his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.