A Mediator’s Top 10 Tips for Counsel


A Mediator’s Top 10 Tips for Counsel

Litigation is frequently resolved through mediation. Just as there are compelling advocates in court, so are there effective counsel in mediations. Here are ten suggestions to help you excel.

1. Timing

There is no fixed rule on when to mediate. Parties may be less entrenched earlier on. Going sooner can also save costs. In contrast, proceeding later may assist if the parties have completed document production and pre-trial examinations.

2. Choose Your Mediator

Consider interviewing prospective mediators. Will the parties benefit from a facilitative approach or someone with an evaluative bent? What are the fees? Is the mediator able to conduct a remote session?

3. Schedule a Pre-Mediation Conference Call

Schedule a preliminary discussion between counsel and the mediator. Typically, the mediator will ask if briefs are to be submitted, if experts might be utilized, and check on any special requirements. Likewise, the use of documents and opening statements can be considered. Early communication minimizes surprises.

4. Consider a Pre-Mediation Conference with your Learned Friend

Make time to explore common ground and discuss potential concerns. Is it possible to generate a settlement template? That document might provide for a release and an order cancelling the court action in exchange for payment of a lump-sum. An agreement here leaves the settlement amount as the sole focus of the mediation.

5. Prepare your Client

Help your client to understand the mediation process. Take time to explain:

  1. the mediator’s role and fees;
  2. whether those fees will be shared by the parties; and
  3. who will be present at the mediation.

Discuss the concepts of “confidentiality” and “without prejudice negotiations.” Likewise, explain the “flow” of the mediation in terms of openings, joint sessions, and caucusing. Emphasize the goal of achieving a fair resolution.

Review the strengths and weaknesses of your client’s position. A firm grasp here leads to meaningful negotiation and realistic expectations. Discuss anticipated proposals from the opposing party. Consider offers you could make and whether to include one in your brief. Explain the cost of proceeding to trial should the mediation not prove successful. A calculation of an anticipated costs award by the court can also be reviewed.

6. Mediation Briefs

A concise summary of the facts and issues will usually assist the parties and mediator. Keep in mind a brief is not a pleading. Consider whether certain facts can be admitted.

7. Decision-Makers

Mediators generally agree that the decision-makers, both counsel and clients, must be “in-the-room.” A failure to follow this “rule” can significantly decrease the chances for resolution.

8. Don’t use the “F-word” unless you mean it

Stating that an offer is “final” can sometimes be disadvantageous. Have an in-depth discussion with your client. Is this truly their final position? Counsel should consider their own reputation as well. Putting forward a “final” offer and then doubling-back for further negotiation may result in your being known as a bluffer.

9. Memorandum of Settlement

It’s usually best to record any settlement in writing. Drafting the document falls to counsel, but an experienced mediator may be of assistance.

10. Focus on Interests

Do your best to see past a “position” and focus instead on the interests at play. When you hear “I have to have this property,” look deeper. It may be the location is critical to the success of the party’s business or that it simply results in a reduced commute for the company’s employees. Seeing what’s behind a position makes negotiating easier. Identifying the interests at play can frequently give rise to alternate settlement strategies. Stay flexible. Figure out what’s really at stake.