The use of mediation as an alternative dispute resolution solution in 2023 has gained significant popularity. Some of the reasons for the increased use of mediation has been: greater education and acceptance of alternative dispute resolution versus litigation; the increased cost of litigation; COVID impact with cases lingering; parties wanting quicker resolution; the growth of virtual mediations; court mandated or encouraged mediation; and, the increased availability of qualified court and private mediators.
As someone who has been mediating cases since the mid-90s with a variety of counsel, parties and issues, there are a number of strategies and practices counsel can and should employ to get the best results for their clients.
The first thing counsel should discuss with their client is what type or style of mediator they need and whether subject matter expertise is required. Many times mediators are selected without giving thought to these points. Mediators can be facilitative and help the parties by creating dialogue to explore interests. A second approach can be an evaluative mediator who typically has legal and subjective matter expertise in the area in question and can advise parties as to likely outcomes. As someone who has litigated in the Supreme Court and also serves as an arbitrator, this approach has been very effective in helping parties resolve some tough cases. Finally, there is the transformative approach to mediation where the mediator encourages recognizing the interests and needs of the other party and explore emotions and parties’ uncertainty.
Once you proceed with mediation and have your mediator selected, the question becomes what should you and your client do to have a successful session. From my experience and having recently attended the American Arbitration Association Mediator Conference, the biggest point stressed by mediators, is the importance of being prepared. You must objectively know your facts, law, damages and risks. Assessing these points with your client is essential. You should then educate the mediator on these issues in an effective mediation statement. The most prepared parties achieve better results than those not prepared.
Another key preparation strategy is objective and legitimate risk analysis. There are now tools and decision trees that can create meaningful risk analysis which can be presented to the mediator and other party. Jury verdict results, as well as court cases, with similar facts and law can be very helpful. Objective and legitimate numbers and calculations are much more effective on opposing counsel and decision makers.
To assist parties with the important step of preparation, I developed a mediation preparation guide for counsel to complete with their client and return to me. The mediation preparation guide covers the various topics (below).
In conclusion, if counsel and their client will utilize these strategies in preparing for mediation, they will be successful. Remember settlement is not impossible.
Hawkins serves as a mediator and arbitrator. He is a former President of the CBA and Chair of the ADR Committee. Michael is a CBADR and American Arbitration Association panel mediator and arbitrator.