Four Tricks That Make Mediation Work

by Gilbert LLP
Contact

If your business finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom. Most lawsuits settle before judgment, and increasingly litigants are turning to mediation—negotiation assisted by a third-party facilitator —to resolve their disputes. They hope mediation will be faster and cheaper than litigation and yield a better result.

But the potential benefits of such alternative dispute resolution are often undermined by the participants entering the process with the same litigation-oriented, adversarial mindset they meant to leave behind. Here are four counterintuitive strategies that harness the strengths of mediation rather than treating it as litigation light. They may not be traditional, but properly employed, they work.

1. Let the other side pick the mediator.

Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time consuming, and adversarial. Avoid this opening skirmish by letting the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, and introduces you to new mediators you might actually like.

Reserve your right to reject someone with an actual conflict, but don’t ding someone just because the other side believes the person is favorably disposed to them or their position. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. And such a mediator, wanting to avoid any perception of bias, may bend over backward to be fair to your side.

Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like, so there is little risk to accepting a mediator proposed by the other side, and much to be gained.

2. Don’t argue about who is right.

Well, not as much as you—or your counsel—want to, anyway. The goal of mediation is not to win an argument; it is to achieve a favorable settlement. Some substantive exchange is appropriate and even useful, but scoring substantive points is at most a tactic. Don’t let it hijack the process.

Usually by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating arguments can harden positions, antagonize the other side, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot. Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over substance later if the mediation fails.

3. Leave the litigators at home.

By default, litigators tend to handle both litigation and settlement responsibilities. Often it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation. The benefits:

? Settlement counsel approach mediation with a clean slate, untainted by the adversarial atmosphere and even animosity that litigation creates.
? Litigation and settlement require different mindsets. Having one person spearhead both may undercut his or her full engagement in either. Not everyone can switch gears so quickly.
? Cases often settle on the courthouse steps. Separating litigation and settlement allows litigators to maintain pressure on the other side at crucial moments while settlement counsel can devote their total effort to mediation.
? Litigation and settlement are specialized skills. They call on different abilities and personal qualities and involve different mindsets. Litigants should spend at least as much time and effort selecting settlement counsel as they do selecting litigation counsel.

4. Deal with hard issues last.

It always amazes me when a mediator says, “Let’s get all the issues out on the table right up front.” If your goal is to create as many impediments to settlement as possible, that is just the right approach. If your goal is to settle, you are generally far better off focusing on a key issue—usually money—first and leaving the other, sometimes harder issues for later. Once there is agreement on the key term, the parties will tend to feel that they have a deal and that the remaining terms will be worked out in due course.  This approach creates momentum rather than impediments.

Indeed, it is often wise to leave key issues, or at least their final contours, to the drafting phase of a written agreement. Deals often fall apart over key substantive issues, but they generally don’t fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Gilbert LLP | Attorney Advertising

Written by:

Gilbert LLP
Contact
more
less

Gilbert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.