- Use pre-mediation telephone conferences. This is a great opportunity to establish rapport, or identify conflicts. It will help prepare you for what lies ahead, and preparation is a key element of success in any venture.
- Don’t insist on a joint session. Let the attorneys guide you on this.
- Unless there is a lot of animosity between or among the lawyers, meet with them at the outset and establish some ground rules, like time limits. Examples:
- a. Limit times for caucuses. If you do not have a background in litigation, you do not appreciate how excruciating it can be to be stuck in a room with an obnoxious client for hours just to ultimately receive an offer that no one in his right mind would consider. You don’t have to be too rigid about this, but if you tell everyone that you do not intend to spend more than an hour in a caucus, it will at least mitigate rambling.
- b. Consider a hard stop for the mediation. If you tell people that you must stop a half-day case at 12:30, it is amazing how most people will try to get the case settled before then rather than having to come back. On the other hand, if you tell them that you can stay as late as needed, you will most likely be eating lunch around 4:00 p.m.
- In complex cases, outline the issues and use that as a checklist for caucuses. It will do wonders for organizing the chaos.
- Try to steer the mediation into a cooperative venture instead of a competitive one. I have not succeeded at this very often because competitive bargaining is the only method most lawyers know.
- Understand and use active listening.
- If things are not going well, look for a reason to recess. If you do recess, see if you can get everyone to approve an agreed order to reconvene at a certain date and time.
- If things are going well, use the one-text procedure as soon as possible.
- If the parties show up in teams, evaluate who is the most reasonable member of each team and cull them out for a joint session instead of bouncing back and forth between committees. I learned this technique from Peter Chantilis who used to mediate cases for me when I was a young litigator. It worked great. Peter was a master of the craft.
- If you are ordering in lunch, make sure it gets there on time. Some of us get grouchy when we don’t get our meals on time.
- Keep a keen eye out for negotiation fatigue. You are better off ending the session with good progress than pushing people for closure against their better judgment. You may get closure, but you may also get a nasty case of buyer’s remorse.
- Don’t neglect to continue to develop referral sources. Referral sources today will retire, die, or move on to the next shiny object.
- Continue to study your craft. Don’t rest on the laurels of your knowledge base. Negotiation and dispute resolution are dynamic fields. Recently, for example, negotiation gurus have focused on the role of emotions. Too often when things are not going well, there is an emotional reason. Understanding that can be critical to success or failure of a mediation. Always remember: people are not rational.
- The negotiation study group concept, which I introduced in 2012, is alive and well. Instead of meeting in person, however, we are now interacting on Facebook and have 81 members, including many highly esteemed mediators and litigators. Please join us.
Presented to the Dallas Bar Association
“How to Become and Stay a Successful Mediator: Personal Experiences and Lessons Learned” on September 25, 2018
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