Improve the Chances Your Mediation Will Be a Success

• Let the other side pick the mediator: Parties often start the mediation process by choosing a mediator by a complex, expensive, time consuming and adversarial process. Skip this aggravation by having the other side pick the mediator. This encourages a cooperative spirit, generates good will, makes the process faster, and reduces costs. Reserve the right to turn someone down if there’s a conflict but don’t be nit-picky. The other side may think there’s an advantage using a particular mediator. He or she should be seen as more credible to them. If the mediator says something positive about your proposal it should carry some weight.
• Avoid arguing about who’s right: Mediation is about reaching an agreement, not establishing who’s right and wrong. Both sides should have a good grasp of the facts and applicable law, focusing on vindictive arguments can harden positions, antagonize the other side and divert attention from the goal of settlement. Talk about dollars or other things that will lead to key settlement terms as quickly as possible. You can argue about the case later if the mediation fails.
• Leave the litigators at home: If a different attorney will actually litigate the case it may be a better idea for that person to avoid the mediation. An attorney devoted to settling the case may not be poisoned by the adversarial atmosphere and animosity litigation can create. Litigation and settlement require different mindsets and skill sets. Cases often settle on the courthouse steps. By separating litigation and settlement it allows litigators to maintain pressure on the other side at critical times while settlement counsel can focus their attention on reaching a resolution.
• Deal with hard issues last: Don’t put all the issues on the table first. You’re just creating a higher mountain to climb. Focus on a key issues first and leave other, perhaps harder issues for later. If a key term can be agreed to the parties should feel that they have reached a deal and the remaining terms can be worked out. This approach creates momentum, not impediments. Substantive issues often prevent agreements, but they normally won’t be prevented due to drafting issues. Perhaps you should leave the hard issues until the end and call them drafting issues. A rose by any other name might have fewer thorns.

Shore’s suggestions point out that litigation and mediation in many ways are opposite. While litigation is seen more as a battle mediation is a way for the parties to work together for mutual good. They don’t need to like each other when all is said and done, they just need to reach an agreement.