Mediator’s Thoughts

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Creating the Best Opportunity to Resolve Your Conflict

The goal of mediation should be to produce a wise and efficient agreement wherein the parties’ conflicting interests are resolved fairly and the parties’ legitimate needs are met.

In his years as a practicing trial attorney, Jeff has learned that a commitment to the mediation process and preparation are critical in resolving a disputes. In this regard, Jeff has committed his thoughts to writing as to what he believes it takes for the parties to put themselves in the best possible position to resolve their dispute at mediation.

  1. Prepare for mediation

    Complete and return the confidential information form; participate in a pre-mediation phone call with the mediator, and gather and provide your mediator with all relevant pleadings, motions, deposition transcript summaries, documentary evidence and demonstrative aides prior to mediation. Prepare your client for mediation and understand his/her expectations. Most importantly, know your case when you come to mediation.

  2. Make the following commitments before coming to mediation

    • Commit to work hard throughout the day toward a resolution;
    • Commit to devote the necessary time to resolve case;
    • Commit to having an open mind and negotiating in good faith; and
    • Commit to have all people present at the mediation with full, final and ultimate authority to resolve the case.
  3. Come up with creative solutions

    Prior to mediation, set aside designated time to think creatively about possible solutions, and invent options that may provide for the parties’ mutual gain.

  4. Ensure that a decision maker is present

    The single biggest problem encountered at a failed mediation is that a person with ultimate authority (i.e., the power and discretion to do anything it takes to resolve the dispute) is not present at mediation. The physical presence of the decision makers is critical and relates to the importance of involving the parties as part of the solution to the dispute. If your side will not have an ultimate decision maker physically present at the mediation, you should advise Jeff and the other party so appropriate arrangements can be made before the mediation process begins.

  5. Understand the mediation process

    As your mediator, Jeff is not a judge or a decision maker. He is not an attorney for any of the parties. His job is to probe and ask questions and to get all parties to evaluate and re-evaluate their own interests as well as the other side’s interests and positions with the view of toward possibly resolving their dispute. The mediator only controls the process. The parties in mediation control the outcome.

  6. Mediation should be viewed as a means of empowerment

    Mediation should be seen as a means by which the parties are both allowed and encouraged to take charge of their lawsuit and control their own destinies.

  7. The mediation process is based on confidentiality

    Jeff will not disclose anything he learns from any of the parties (unless given permission) and will destroy his notes following any mediation. This is Jeff’s sacred vow as a mediator, and he will work hard to create a safe environment to ensure the confidential nature of the process. Jeff’s only obligation is to advise the court whether a case settled.

  8. Remember that all people have egos and people are not perfect

    Some of us are not great communicators, and some of us do not listen. Each party has their own set of positions and goals. Agree to work with the mediator side-by-side to attack the problem and not the other side or other parties.

  9. Be prepared to answer the following questions at mediation

    • What does Jeff need to know about your case?
    • What is most important to you (i.e., what do you want; what are most important things to you; what are your goals)?
    • What are the strengths and weaknesses (problems/concerns) of your case?
    • Why do you think your case is worth X amount of dollars (or, why do you think the case is not worth X-Y amount of dollars)?
    • What do you know that Jeff does not know as to why the other side would never agree to do exactly what you want?
    • What facts would you change if you could?
    • How do you believe the other side perceives the case?
    • What is your best/worst day at the court house (what happens 9 times out of 10 if you try this case)?
    • What is your Best Alternative to a Negotiated Agreement (i.e., what is best case scenario/alternative if we cannot reach a settlement)?
    • What do you believe is a reasonable range for the case to settle, AND what do you believe the other side believes is a reasonable settlement range?
  10. Do not mediate with the mediator

    Jeff is an advocate for settlement and expects the parties and counsel to have candid and honest conversations with him.

  11. Understand that Jeff may play the role of “devil’s advocate.”

    While Jeff may appear to be taking one side’s position over the others, this is done an attempt to hear your best arguments or tell him why he is wrong. If Jeff is playing this role, be assured that he is using the same approach with all other parties.