Now that mediation is being used more and more frequently, as discussed recently in this article, what should a party’s goals be in the mediation and how can they achieve them?
The first goal – if possible – is to settle the entire dispute. After all, if this is achieved, the parties would no longer have to invest time and money in litigating the dispute.
If a complete settlement of all issues cannot be reached, a second, helpful (though not completely satisfactory) goal would be to resolve as many of the issues in dispute as possible. In this way, the time and money that a party would have to invest going forward should be reduced and the parties can concentrate on those issues that remain.
If a comprehensive or partial settlement cannot be reached, a third goal would be to use the mediation, and the services of a skilled mediator, to better assess the strengths and weaknesses of your own case. This will help you better evaluate settlement opportunities in the future should they present themselves or, if they do not, prepare for trial.
A fourth goal would be to take stock of your adversary; both the other party in the dispute and his or her attorney. While it can be dangerous to draw conclusions about a person’s communicative skills, competency and determination from a small sample of interactions at a mediation, you may at least form impressions, which may be helpful, that you can test going forward in litigation, such as at depositions and in motion practice.
Remember, mediation is not a zero sum game. It is not only successful and useful if the parties settle the dispute; there can be other things that a party can derive from an “unsuccessful” or only partially successful mediation.
What can you do to achieve the best outcome at a mediation?
Be prepared. A party and his or her lawyer must know the facts, consider the facts that the other party will advance, and the impact of relevant principles of law on each party’s case. In this way, a party will enter the mediation with a realistic basis upon which the give and take of settlement discussions can take place.
Part of preparations should be to identify your needs and interests in the outcome of the dispute. Yes, it would be great to have it all — whether as a claimant or a respondent — and under some circumstances, a party may be entitled to it all. However, in many or in most instances, that is not possible or warranted and — even if it is, there would be a cost to getting there. By better understanding your needs and interests, which would include your ability to fight for a better outcome, a party can better evaluate settlement opportunities. And, a good mediator will force you to identify your needs and interests as the mediation goes forward.
When you have completed identifying your own needs and interests, try to imagine what the other party’s are. After all, they should also be focusing on their needs and interests in evaluating settlement opportunities. Parties often find that the give and take on certain issues that are in dispute can allow each party to achieve, or come close to achieving, his or her needs and interests. When coupled with the uncertainty of a resolution imposed by a third-party — an arbitrator, judge or jury — wherein a party may not achieve any of his or her needs and interests, parties often will find it in their interests to reach a resolution.
Be prepared to communicate — certainly with the mediator, but also with the other party. Take the opportunity (where appropriate) to address the other party directly and communicate facts; the impact on you of what has occurred; and your determination to forge ahead if you cannot obtain a fair resolution which may lead to more fruitful settlement discussions at the current mediation, or in the future. If nothing else, it will give you an opportunity to get something off your chest, which may be cathartic and a necessary first step to a successful resolution.
Don’t forget to listen when the other side speaks. At the very least, you may learn something that could be helpful to your case. Moreover, you may learn of facts that you may not have known, or of the way the dispute has impacted the other party, which may be helpful in settling the case in the future or, if necessary, at trial. Remember, the parties may never have an opportunity to address each other directly, again.
Finally, when communicating with the mediator – certainly when you are alone with the mediator in a caucus – be open with the mediator, answer questions directly, and be willing to consider the mediator’s thoughts and suggestions and to present some of your own. Sure, at the beginning, parties tend to try and “play” the mediator; that is, to try to convince the mediator that they are entirely in the right, and, though they are abundantly reasonable, have only so much flexibility on settlement. That often leads to extraordinarily high initial demands or low initial offers. After the parties get that out of their systems and, usually, have not succeeded in moving the ball one yard down the field, and as the parties begin to establish a relationship with the mediator, it becomes time to get serious if one wants to try and settle the dispute. That doesn’t mean giving in; and it doesn’t mean “splitting the baby.” It does mean discussing with the mediator your needs and interests, what you perceive to be (or are told by the mediator to be, if he or she is allowed to disclose them) the other side’s, and then exploring ways to try and come to a resolution that attempts to meet the needs and interests of all parties. Remember, anything you say to the mediator in caucus is confidential; it cannot be disclosed to the other party without your express consent.
Mediation should not be viewed as a necessary step or inconvenience foisted on a party by a court in litigation, or by the terms of a contract. Rather, it should be viewed as a valuable form of dispute resolution that, if successful, allows the parties to resolve a dispute quickly — at far less cost than resolving it at a hearing or trial.