Mediation is a productive process, a process whose premise is that no party will get exactly what they want, but each will compromise to reach a mutually agreed upon resolution. I hear attorneys say that a good settlement is where everyone comes out unhappy. This sentiment is not true. While some buyer’s remorse on both sides is normal, generally I have found that the parties are grateful that the dispute has been resolved. Much of this relies on the mediator’s ability to help the parties change their negotiating position and accept a compromise without losing face. Making the best use of your mediator’s abilities and time at every stage of the proceeding is extremely important in attempting to reach resolution. The mediator can be of great assistance even prior to the date of the mediation itself. Depending on the complexity of the case, involving the mediator in a pre-mediation teleconference is worth considering. In general, the parties may give a brief recitation of the facts of the case; what settlement negotiations have already taken place; what non-negotiable conditions might be in play; a discussion with respect to the submission of briefs prior to the mediation; whether the briefs will be exchanged; and any other topic that will help to make a more efficient use of both the parties’ and the mediator’s time.
A discussion about the creation of a structure for the mediation process and seeking the mediator’s input prior, can streamline the process. Separate teleconferences with each party, on consent, are also worth considering. This obviously would involve a more candid representation of the position of the party as it relates to the case. Many times, by engaging in the foregoing, the necessity of a joint session can be dramatically shortened, if not eliminated.
