3 things that people need to do at mediation
Updated: Mar 24, 2021
I attend mediation regularly with my clients. Thanks to what I've learnt from Roger Fisher and Joel Lee, and with the help of well-trained mediators (and hopefully my learned friends), I manage to reach settlement about 80% of the time (to the extent that it's adversely affecting my firm's bottom line, but that's another story for another day).
However there are some things which gets my goat, despite the mediation-friendly climate and the breadth of available training and resources a lawyer (or an appointed mediator) can get if he or she is serious about finding a solution for their clients. In no particular order:
1. Stop entrenching into legal positions. We are all lawyers. We have seen each other's pleadings and maybe some of the evidence. There is no need to continuously debate about the merits of either side's case - save that for the trial judge. If you can come right out and say what your client desires, we could save a lot of time (even if it means finding out that there's no zone of possible agreement right from the get go), and start brainstorming about how to resolve the current dispute.
2. Let the client talk. I get that we get paid to advocate and argue for our client. But since your client is already here, let them share their perspective, and we might all learn something new about what motivated them to start proceedings, or whether they have other issues that they wanted to address. We could walk away with a better outcome than what a court could provide, and with less bruised egos too.
3. Consider that there is usually more than one way of resolving the problem. To be fair, this is not a huge problem, but I would like to avoid having my client triggered by the perception that the other side - or sometimes, the mediator - is trying to force a solution down their throat (and vice versa). This becomes a bigger issue when a position becomes mistaken for an underlying interest, and parties can only see one way out because of how events were framed.
Despite encountering these issues fairly regularly, I still enjoy mediation. It satisfies my desires to solve problems, it reduces billing fatigue for client and everyone can move on to doing the things they want to do instead of being stuck in court (which probably only lawyers want, and even then maybe not all of us). Though I think at some point, all lawyers or lawyer-to-be ought to go through some form of mediation advocacy training so we can do our job better, which now includes advising clients on alternative dispute resolution (and presumably taking them through the process as well).