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Editor’s Note: In order to protect the confidentiality of participants, the anecdotes in this article represent a composite of actual mediations. Over the past decade or so, mediation advocates and party representatives have developed a far more sophisticated understanding of the process of mediation. Most mediation advocates understand that, in a word, mediation represents an “opportunity” for the client to save time and money, preserve relationships, and achieve creative or business-driven solutions to a dispute. Most understand that the flexible process of mediation permits the parties to go well beyond the positions in litigation and delve into the underlying interests of the parties as well as the specific needs of the participants. However, even more sophisticated trial lawyers and party representatives participating in mediation commonly make certain mistakes that reduce the potential for successful outcomes in mediation. Following is a discussion of what I have found to be the 10 most common mistakes made by advocates in mediation. 1. Reluctance to propose mediation. Many mediation advocates are reluctant to suggest mediation to an adversary for fear of showing weakness and losing leverage in the negotiations. I believe this concern about losing leverage is highly overrated. Presented in the form of a question, such as, “Do you think mediation makes any sense?” a suggestion to mediate will often evolve on a joint basis. If an adversary is reluctant because of unfamiliarity with mediation, an advocate should consider presenting possible benefits beyond the saving of time and money, such as the opportunity to restructure debt or pursue other streams of revenue. Further, since mediation is nonbinding, parties can consider giving an adversary a fair degree of control over process decisions such as designating the neutral (with approval) or recommending some of the approaches which should be employed in mediation. 2. Insufficient due diligence in selecting the mediator. Critical to the success of a mediation is the employment of a highly skilled and experienced mediator. Especially in a substantial controversy, a mediation advocate should engage in substantial due diligence to assess the skill, experience and style of a particular mediator candidate. In addition to collecting the kind of data available on the Internet, a mediation advocate should speak with other persons who have employed a particular candidate under consideration. In addition, it is not at all inappropriate to call a mediator candidate to discuss the candidate’s style and approaches in mediation and discuss issues such as preparation, written submissions, use of joint versus caucus sessions, any use of evaluative techniques and the ways in which a mediator would approach any impasse. While such a conversation is appropriate, in contrast to any such ex parte communication when selecting an arbitrator, one should not go too far without an agreement from opposing counsel in order to avoid any possible concern that the mediator was co-opted in an initial conversation. 3. Insufficient preparation. In a Q&A session following a presentation at a seminar, I was once asked, “What’s the key to success in mediation?” I quickly responded with three words — “prepare, prepare, prepare.” Regrettably, I find that many mediation advocates, who probably would spend hours preparing for a single deposition, spend very little time preparing for a mediation. Perhaps it is a lack of familiarity with the process or the not uncommon feeling that there is little likelihood of success. However, there is an enormous opportunity lost if a mediation advocate does not spend a substantial amount of time preparing with the client with a particular focus on issues such as the need to assemble a team; issues of authority; deciding in advance who will be the principal presenter, the principal negotiator and the ultimate decision-maker; the need to define the interests, needs and goals of the client; the written and oral presentations that will be made; and the specifics of a good negotiating plan. 4. Failure to develop a negotiating plan. Most mediation advocates are litigators who are well trained in advocacy and trial skills, but who approach negotiations on a somewhat intuitive basis. As a consequence, many mediation advocates commonly make a thorough analysis of their own client’s rights and interests, but often fail to make any significant analysis of the other side’s perspectives and interests. In meetings with clients in advance of mediation, many mediation advocates fail not only to adopt a strategy for the negotiation, but come to the mediation without even being prepared to make a first offer or demand. Their attitude seems to be, “Let’s see what the other side does and then we’ll respond.” Often driven by the conventional wisdom that a party should not “bid against itself,” many mediation advocates fail to consider the advantage of anchoring a negotiation in their zone by making the “first credible move.” In studies on negotiations, this proven technique is known as the advantage of “anchoring and adjustment.” 5. Failure to involve the client. A mediation advocate should make every effort to identify and encourage the appropriate client representatives to participate actively in mediation in order that they have the best opportunity to recognize potential solutions and to assure that any settlement decisions are made with full appreciation of the risks and likely outcomes in litigation. It is not uncommon for mediation advocates to assemble a team that includes party representatives, but to limit their participation, especially in a joint session. Especially if the party representative is articulate and persuasive, his or her statement directly to the other side can be far more powerful than any summation or advocacy statement by the advocate. 6. Focus solely upon legal positions. Many mediation advocates bring their litigation perspectives to mediation and focus almost entirely upon issues of liability and damages. Many also engage solely in a “distributive bargaining” where they exchange offers and demands in an effort to “divide the pie.” As a consequence, these mediation advocates and their clients fail to capture an opportunity to create value. In contrast, a skilled mediation advocate will encourage his or her client to engage “integrative bargaining” and take a more collaborative approach in an effort to create value in the negotiations. They will encourage their clients to focus upon their interests as well as their rights and to look for business-driven solutions such as the restructuring of agreements to provide for new terms on issues such as pricing, territoriality or exclusivity. Even in pure monetary disputes, mediation advocates should explore the potential for creative means of monetary exchange such as, for example, a deferred payment obligation. 7. Preoccupation with winning. It is not surprising that many mediation advocates who are trained to “win” in litigation look to “win” the negotiation that ultimately takes place in a mediation. As a consequence, many mediation advocates engage in excessive rhetoric during the course of their presentation in a joint session and advance unrealistic and uncompromising positions when ultimately in a negotiation. By utilizing techniques that may be entirely appropriate in a trial or arbitration, mediation advocates fail to seize upon the potential for good outcomes that may well serve the long-term interests of the client they represent. Mediation advocates would serve the interests of their client far better if, in a joint session, they stated their best case and at the same time articulated to the other side that they are attending the mediation in “good faith” and recognize that both sides will need to make some concessions in order to achieve a settlement. In caucus sessions, mediation advocates would serve their client’s interests better by admitting to the mediator that there may be weaknesses to some of their positions. In addition to maintaining a level of credibility with the mediator, a mediation advocate should want to direct the mediator to carry messages to the other side that will truly resonate. Once in a negotiation, a mediation advocate would also do well to enlist the mediator’s comments on what moves in a negotiation might or might not be productive. 8. Failure to listen in negotiations. Mediation advocates are often so intent upon convincing the other side and the mediator of the correctness of their position that they fail to listen carefully to what the other side or the mediator is saying. Simply stated, information is power. A skilled mediation advocate will listen to every word in order to learn more about the other side’s positions, perceptions and interests and to discern signals that may reveal the other side’s settlement position. For example, the statement, “We’re not prepared to make a significant move” should generate the responsive question, “What do you regard as significant? or “what move are you prepared to make?” All too frequently, mediation advocates lose an opportunity to advance the negotiations by missing the subtle cues that can be learned from the spoken words, tone and non-verbal conduct of the participants in a negotiation. 9. Poor assessments. Mediation advocates often advance, on behalf of their client, arguments based upon what the clients may need or want, what is fair, what is right and what is “true.” Of course, skilled mediators often discuss with parties and counsel the fact that there is only a “court truth” which may or may not bear any semblance to a party’s view of the truth. While all of these issues are appropriate for discussion in mediation, a good mediation advocate owes a duty to his or her client to make a realistic assessment and a responsible decision. Even in advance of mediation, the mediation advocate would best serve the interests of the client by having a good discussion with the client concerning the only responsible benchmark for settlement decisions — comparing what is achievable in settlement with what the world will look like, in all of its ramifications, if the dispute is not resolved in mediation. 10. Failure to bring a draft of a settlement agreement to the mediation. Most mediators will ask mediation advocates to bring a draft of a settlement agreement covering all of the key economic and non-economic issues that need to be addressed in the event the dispute is settled in mediation. Mediators will insist, at the very least, that the parties enter into a binding term sheet on all key issues in the event of a settlement. Perhaps motivated by a feeling that the dispute is not likely to settle in mediation, most mediation advocates do not follow this particular instruction. As a consequence, at considerable expense, mediation advocates often spend hours drafting a term sheet after achieving an agreement in principle at the end of the day. At this point, mediation advocates and their clients often find themselves tired and unprepared, often find that they are without important information or key documents, and at times overlook key non-economic issues. Once again, the interests of the client would be well served if a mediation advocate brought a draft of a settlement term sheet to every mediation. Mediation advocates can maximize the potential for successful outcomes in mediation by employing the same level of dedication and professionalism as when preparing for trial. As demonstrated above, preparing for mediation requires an approach vastly different from the approach an advocate would take when preparing for a trial. By avoiding the mistakes discussed above, a mediation advocate can turn negatives into a positive strategy for success in mediation. Bennett G. Picker is a partner in the Philadelphia law firm of Stradley Ronon Stevens & Young, where he concentrates his practice in mediation and arbitration. He is a fellow of both the International Academy of Mediators and the American College of Civil Trial Mediators. He serves on the panels of the American Arbitration Association and the CPR Institute for Dispute Resolution and serves as a member of the executive committee of the American Arbitration Association’s Board of Directors.

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