Before the mediation, think about the case as if you are going to trial. But do not behave in the mediation as if you are in trial. The point is to resolve the case, not to prove how difficult you will be on the witnesses at the depositions. Do not use the mediation for an improper purpose, such as to cross-examine or to threaten or bully the other party. Spend time with the other side’s witnesses, if possible, since it a good opportunity to see them as the jury might see them.
You must spend enough time with your client talking about the actual risks of litigation. Tell your client to LISTEN to the other side and to the mediator. And you do the same. Do not fear the weaknesses in your case. Admit them, at least to the mediator, and be prepared to explain how you will deal with them at trial. The key is to be practical and realistic, not self-righteous or bullying. Keep in the forefront of your mind that the goal is to walk out of the negotiations with the case over. Advise your client that being cordial and professional to the opponent will go a long way toward resolving the case, and is not a sign of weakness.
Listen not only for what the opposing party says, but also for what is not said.
Omissions are the easiest way to ethically mislead others or distort the picture. Be mindful of what is missing in the opposition’s explanation of events, and be prepared to call him on it. But do it thoughtfully and strategically. Sometimes it is best to make of note of what is missing, and use it later, rather than blurt out in the middle of the presentation that he missed the key point.
Develop a Relationship With the Mediator. If you are using a mediator, presumably you have made the determination that settlement will be facilitated by use of this particular neutral. You should consider the mediator as an ally in the process. Posturing with the mediator is not an effective technique. You are not in court. You can and should tell the mediator what your issues are, what your weaknesses are, what your client’s fears are. Even if you want information kept confidential from the other side, giving your mediator the most information possible is the best way to get your case resolved. He or she will know how and when to use that information. Candor is the best approach.
Do not embellish your case with the mediator. Your credibility is on the line, as is the credibility of your client. If the mediator understands your case, the weaknesses and/or fears won’t detract from his or her effort on your behalf to resolve it. Allow the mediator to use creativity in thinking about how to resolve the case. What is it that will make your client’s life better? We know that resolving the case in and of itself will make her life better. We also know that an unreasonably exorbitant demand from plaintiff, or an unreasonably low offer from the defendant, will make it too easy for the parties to walk to the courthouse. Other than money, what can the defendant provide that will improve plaintiff’s life? If you have succeeded in developing a relationship with the mediator, and allowing your client to do so, the mediator will have suggestions that may move you toward settlement.
