Synopsis: Key Mistakes Made by Mediation Participants
The items in this "Synopsis" are meant to help lawyers in the goal of resolving their clients' problems through a negotiated solution. It is not an exhaustive list nor is it expected that every item suggested by the "mistakes" be performed. It is supposed to raise questions about the best way to proceed in a mediation and hopefully create a much better opportunity to have a succesful mediated solution to your client's problems.
1. The Five Stages of Mediation
a) Deciding whether to do a mediation
b) Selecting the mediator
c) Preparation for the mediation conference
d) The mediation conference
e) The settlement agreement
2. Mistakes Made Deciding Whether to do a Mediation
a) Failure to assess whether it is the right time for a mediation. Not doing a thorough analysis to decide when the mediation is appropriate given the facts, law and circumstances of the case --- is it too soon, too late or the appropriate time to proceed?
b) If in doubt about the timing, not discussing the timing with a mediator.
c) Not knowing yourself. What are your negotiation tendencies and style? Why are they effective? What are your emotional trigger points? What is your relationship with your client and how may that affect the mediation? etc.
3. Mistakes Made Selecting a Mediator
a) Not knowing or understanding the mediator's style of mediation, e.g. evaluative, facilitative, transformative, understanding-based or some combination of these.
b) Choosing a mediator because the mediator has no prior experience with the other mediation participants. A prior experience is usually very helpful in a mediation. The only question should be whether you and your client trust the mediator. Any questions as to trust (regardless of the reasonableness of those questions) then choose another mediator. The mediator must have the absolute trust of the parties to be effective.
c) Choosing a mediator without prior experience in the general subject area. A mediator to be effective must understand the overall setting of the issues being mediated. For example, a mediator without experience in patent law will be significantly limited in a patent dispute case.
4. Mistakes Made After Selecting a Mediator and Before the Mediation
a) Failure to prepare for the mediation or the mediation conference, including providing an insufficient mediation statement. The mediator should have specifically informed you what information needs to be provided in the mediation statement. Provide that information in a format that is understandable and comprehensive. Documents can be attached supporting the mediation statement but just supplying documents and nothing further usually is confusing and does not help the mediator understand the specific needs of your client at the mediation.
b) Failure to adequately prepare the client/consultants/others for the mediation or the mediation conference.
c) Failure to recognize that most successful mediations are interest based mediations and not positional mediations or adversarial proceedings.
d) Failure to recognize the importance and create a reasonable/realistic "Best Alternative to a Negotiated Agreement" ("BATNA") prior to the mediation conference and to have flexibility in that BATNA throughout the mediation process as more information is obtained.
e) Failure to realistically assess the BATNA for the other mediation participants.
f) Failure to realistically assess the Worst Alternative to a Negotiated Agreement (“WATNA”) or other potential outcomes to you and other mediation participants.
g) Not properly assessing (usually underestimating) the total long and short term adverse risks to the client of litigation, the costs of litigation and duration of litigation.
h) Not properly assessing the personal costs (outside the financial costs) and collateral financial costs (such as opportunity costs) to the client of an adversarial process.
i) Failure to have the right people, from all sides, at the mediation conference. Key consultants, government personnel, non-parties affected by potential mediated solutions, and others are sometimes as important as the persons having settlement authority. Related to this is not informing the other side, sufficiently ahead of the mediation conference, who you are bringing to the mediation conference.
j) Failure to contact the mediator prior to the mediation conference to discuss negotiation strategy, personality issues, settlement authority and other issues that could substantially impact the outcome of the mediation.
k) Devaluing the importance of the time needed for the mediation conference and the location/setting of the mediation conference.
5. Mistakes Made at the Mediation Conference
a) Delivering an opening statement at the mediation conference that is argumentative, or worse, accusatory in substance or style.
b) Failure to recognize the importance BATNA/WATNA and other possible outcome scenarios prior to the mediation conference and to have flexibility in those analysis throughout the mediation process as more information is obtained.
c) Threatening the other mediation participants at any point during the mediation process instead of trusting and allowing the mediator, when appropriate, to effectively deliver the message of the "consequences" of not reaching a mediated settlement agreement.
d) At the mediation conference, keeping the mediator out of too many "strategy sessions", or, in other words, treating the mediator as a "messenger between the parties" instead of as a neutral that can help create solutions.
e) ot understanding the emotional side of almost all mediations and how to effectively handle emotions (clients as well as attorneys, consultants, etc.) during the mediation process. My estimate in 18 years of doing mediations is that 3 out of 4 mediations that impasse did so because of emotions as opposed to a valid interest that was not being met. Emotional issues need to be addressed at all stages of a mediation.
f) Devaluing the importance of the time needed for the mediation conference and the location/setting of the mediation conference.
6. Mistakes Made Drafting the Settlement Agreement
a) Not preparing or seriously considering a draft settlement agreement or terms prior to the mediation conference.
b) Starting the drafting process of a settlement agreement late in the day of the mediation conference.
7. Mistakes Made after the Mediation
a) Not analyzing your performance and the performance of others.
b) If there is a mediation impasse, not asking yourself what could I have done to prevent the impasse. As a mediator, I always ask that of myself regardless of circumstances or participants' behavior. If an agreement is reached, asking what went well, what could I have done better and what needs to be changed.
c) Not asking the mediator about your performance.