Mediation Journal – Attorneys Need to Get to Work in Mediation

I recently completed the South Carolina Bar’s 40-hour Mediation Training seminar. Five days in length and incredibly intensive, this course was arguably the best CLE I’ve attended. I have an ambition to begin serving as a mediator in civil litigation; however, even if I didn’t, this course opened my eyes to what mediation really is and what it isn’t. As well, and perhaps more importantly, we learned what the mediator and attorneys are really supposed to be doing in mediation.

Overall key takeaway:

The truth is: Lawyers have become increasingly lazier at mediation. Whether it’s preparing for it, preparing our clients and carriers for it, or what we’re supposed to be doing while at mediation, we’re not doing enough. Instead, we’re asking way too much from our mediators.

It’s the advocate’s job to put up their client’s case and do and say the things during the mediation to be persuasive. Moreover, lawyers representing the parties need to remain actively engaged throughout the proceedings. Mediation is not the day for you to catch up on emails. All too often, lawyers come to mediation and do the bare minimum, thinking they can just turn the case over to the mediator in the caucuses to somehow get the case done. This is laziness and this laziness is affecting outcomes. The mediator is not your negotiator.

Four examples of advocates doing the work at mediation:

1. Premediation preparation: Get key case materials (pleadings, pending dispositive motions, written summary) to the mediator a week or so before mediation – and in as concise and brief format as possible. No 15-page dense law review-eque reports to them.

Supplement your written materials with an effective call before the mediation where you lay out the good, some/all of the bad, the hotspots and possible landmines. One thing that resonated all through the training with the participants when doing mock mediations was how important the premediation call is. Don’t plan to be able to educate your mediator about all the bitter detail on the day of mediation. There’s too much going to be able to do that.

2. Mediation is a negotiation. It’s all about dialogue of risk and keeping things moving. That’s the mediator’s key role. As the lawyer, it’s your responsibility to be fully prepared and know your case inside and out. You’ve got to feed your mediator with persuasive information so the mediator has the ability to question the other side and have that side continue to evaluate their case, keeping in mind your positions on liability, damages, venue, etc.

3. You’ve got to be the advocate and work the case to resolution. The mediator is not there to evaluate your case or force the other side to do anything. The only way the case is moving is if you and your client are prepared to make moves. Mediators are not miracle workers.

4. Mediation is a process, which includes meaningful opening statements by the mediator and the parties. Within recent times, both counsel and many mediators have opted to either severely abbreviate opening statements or obviate them altogether. You often hear: “My client doesn’t need a dog and pony show” or “Y’all have done a thousand mediations, you know what I’m going to say.” While some or all of that may be true, don’t substitute your assumptions or opinions for the power of the process.

A complete opening statement by the mediator sets the stage and the ground rules for an effective mediation. It creates parameters for expectations and works to avoid misunderstandings and ambiguities. Opening statements by the parties clearly illustrate their positions in the dispute; these need to be articulated. And you can be effective and comprehensive without being longwinded. Brief opens by the mediators, no opens by the parties, or inconsequential opens often have a direct effect on the mediation failing. Do the work you’re getting paid to do as the advocate. As well, select mediators who will do the work.

As noted above, mediation is a process. And like any process, there’s a right way to do things and a wrong way. When you do things the right way, the process works. Mediation works! Lawyers and their clients should trust the process. But trusting the process doesn’t mean show up to mediation and lay back while the mediator does the work. To the contrary, the workhorses in mediation must be the lawyers who are the advocates/persuaders/neogtiators/peacemakers. The mediators are there to facilitate the process, keep the dialogue going, and help the lawyers and litigants get themselves to resolution. Like anything else in life, in mediation, if you thoroughly prepare and are ready to work hard throughout the day, good things can happen.