Whether you are a plaintiff or defendant engaged in litigation, or are someone faced with litigation which has not yet been filed, you will probably be counseled by your attorney to consider mediating your dispute. Many people confuse “mediation” with “arbitration.” Mediation is defined in the American Heritage Dictionary as “an attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party.” In other words, mediation requires the consent of both parties to the dispute and is purely voluntary. Arbitration is an alternative to a trial in which a selected neutral person (Arbitrator) actually decides your case and you are bound by the decision. Obviously, unless both parties to a mediation feel that they will receive a “benefit” from the mediation, it will not be successful because they will not reach an agreement. There are a few things that you, the client, can do to increase your chances of a successful outcome to a mediation.
1. Attitude adjustment.
This is probably the most important thing that you can do to help reach a successful conclusion in the mediation of your dispute. The American justice system is based on the notion that money will either heal your injuries, compensate you for your pain, or gain you the profit you expected from the deal you made. If you are angry because of the harm you perceive that the other side has inflicted on you, whether before or during the litigation, and you have a mind set to obtain the greatest advantage possible over your opponent, you will be sorely disappointed. You need to attend the mediation with an open mind, and be willing to discuss the issues with the selected neutral, remaining positive that this process will save you time and money and may result in an acceptable solution. A mediation where one of the parties insists on gaining a pound of flesh from the opposition will assuredly fail. Thus, the first thing you need to do is approach mediation with an attitude of exploring the possibilities of reaching a reasonable result.
2. Prepare, prepare, prepare.
The next most important thing for you to do is to meet with your attorney prior to the mediation and prepare for the process. You should explore the strengths and weaknesses of your case with your lawyer. If your lawyer tells you that your case has no weaknesses, tell him or her that they obviously have not done their homework, since every case has its weaknesses that need to be thoroughly discussed before you attend a mediation. You and your lawyer need to fully understand all aspects of your case to take advantage of the opportunity to settle the case outside of the courtroom. The mediation process involves lots of “give and take” during the process. Your preparation should include exploring the possible outcomes, the possible risks and rewards, and the financial and emotional costs to you. You must also evaluate your opposition and the judge or arbitrator who will decide the case if your mediation fails. Preparation is every bit as important as attitude in being able to obtain a successful mediation result.
3. State your case clearly and keep the emotion out.
The most effective advocates in a mediation are the clients. During the opening session of many mediations, the client is allowed to state their position in the presence of the opposition. Clients rarely avail themselves of this opportunity, relying instead on their attorneys. I think it is a mistake for the client not to state their position if they can do so clearly and rationally. The statement should not turn into a diatribe against the opposition, since that type of outburst will most often destroy any chance of a settlement. However, a client who clearly states his/her position, without too much emotion, makes a more powerful presentation than their lawyer every time.
4. Be flexible.
The client must be open to the idea that you may not receive 100 cents on the dollar for all your damages. If you are seeking a non-monetary result, be open to non-conventional solutions. Just because neither you nor your lawyer planned on a particular type of resolution being suggested by the mediator, do not reject it out of hand. When you are in court, the Judge may reach a result that neither of the parties likes and then, short of an appeal, the parties are stuck with a decision that is worse than the original problem.
5. Be patient.
Attending a mediation can be boring. The mediator will spend a great deal of time with your opponent and their counsel. You and your attorney may be left alone for an hour or more at a time, depending on the complexity of the issues, the amounts of money involved, and the reluctance of the other side to fully engage in the mediation process. Do not give up and go home. The only time to leave is when the mediator tells you that he or she cannot see a resolution of the matter being reached. In that case, find out if the mediator thinks that recessing the mediation and resuming it at some later date would be productive. Often, the passage of time or the furnishing of additional information can bring the parties back together in a matter which appeared hopeless during the first meeting, but might readily be resolved at a second meeting. Patience is a virtue in mediation.
Summary.
Most courts and arbitration forums urge or require litigants to go through a mediation or settlement conference before setting a matter for trial or hearing. As a participant in the legal process, you should welcome the opportunity to participate since, if successful, it will reduce your expenses and conclude the process early. By adjusting your attitude, preparing carefully, clearly and unemotionally assessing your matter, and being flexible and patient, you will greatly increase your chances of a successful resolution of your matter through mediation.
