After 10 years on the bench conducting settlement conferences, I anticipated that becoming a mediator would be easy. Seventeen years later I am writing an article I could call “How To Do Mediations Wrong.” Mistakes have taught me what I can do better to help counsel and clients increase the likelihood of a successful mediation.
Like all good mediators, I have learned to keep all secrets and forget them the next day. I have found that I need to tell counsel and especially clients the truth of what I perceive to be strengths and weaknesses of a case (I do emphasize different things to different parties). I have learned to listen to all questions, especially from clients, and to answer those questions (or not) depending on the circumstances. I have learned to make sure the mediation gives the clients their “day in court.” If counsel and I do all that then the participants develop trust in the process, so that when it is time to “close,” the clients feel the mediation has been difficult, tiring, and stressful—but fair, so they are open to a resolution that makes them unhappy— but relieved.
Please see full publication below for more information.
