The following article first appeared in our Winter, 2015 Mediation Newsletter:
Due to the positive response we received to “7 Secrets of Success at Mediation”, we decided to release a sequel. Here are seven more ‘secrets’ to help you maximize success at your next mediation:
1. WHY WAIT TO MEDIATE?
The trend toward earlier mediation in lawsuits is a positive development. Consider mediating even earlier when costs and stakes are lower: Shortly after an employment termination (to read why click here), prior to discovery in a personal injury action or before a Claim is issued in any type of case.
2. ‘SOUP IS THE MEAL’
What does a classic Seinfeld episode have to do with mediation? Everything. Instead of treating mediation like an appetizer before you get to the real meal (trial, a summary judgment motion, etc.), treat mediation, and prepare for it, as if it were the main course. The likelihood of court intervention is statistically low and the chances for successful resolution at mediation are high – if you prepare for it.
3. WHATEVER WORKS
Trust the process and listen to your mediator. If he or she recommends a joint session, or even a meeting with the parties without counsel, at some point then remain open-minded. There is often little to lose and much to gain.
4. RESPOND, BUT DON’T REACT TO BAD NEWS
Do you believe the other side is being unreasonable? Before packing up and walking out, respond by adjusting expectations and making the most of the mediation by not catastrophizing. Ask yourself: “is there something useful that can be accomplished today?” Usually, the answer is “yes” and it can lead to a settlement in the near future.
5. KEEP TALKING
Similarly, when you reach an impasse, keeping the conversation going can lead to an unexpected breakthrough in the negotiations.
6. PESSIMISM PAYS
Dr. Martin Seligman, author of the best-selling book Learned Optimism (2006, Vintage) suggests not being optimistic if planning for a risky and uncertain future (p. 209). Given litigation’s risks and costs, consider this in the privacy of caucus. To read more about the value of “learned pessimism” at mediation, click here.
7. USE ‘MEDIATOR FOLLOW-UP’
If the mediator offers to follow up with the lawyers should a settlement not be reached at mediation then take him or her up on it. With proper attention, many cases can settle in the days or weeks following mediation.
To learn more about how our firm’s mediators can help you, click here.
Disclaimer: Welcome! Please note that this blog and its posts are intended for educational uses only. They are not intended as, nor should they be construed by the user as legal advice. The use of this blog and this post does not create a lawyer-client relationship. Should you require legal advice for your particular situation then please feel free to contact us to arrange for an in-person consultation.