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As a mediator immersed in legal dispute resolution, there are aspects of the process that could be better understood. Bridging the gap between conflicting parties requires cooperation and preparation.
These examples, drawn from real mediations, serve as learning experiences, setting the stage for a candid discussion on how litigators can contribute to an even more effective mediation experience for everyone involved.
Let the client have an active role
Mediators wish more litigators recognized the importance of letting clients actively participate in the process. Clients can get frustrated when they sit there listening to the lawyers and mediators doing all the talking, especially when they aren’t given an opportunity to tell their story.
After all, they are the ones who have lived through this conflict from the beginning of its inception, long before lawyers were involved. Allowing clients to say anything they want to say is a strategic approach that can positively influence the resolution process.
The importance of the client’s involvement goes beyond mere emotional expression. It extends to their unique insights into the conflict. They have firsthand knowledge of the nuances, motivations and personal stakes involved.
Clients who are given a voice at the table, express their feelings, and are empowered to contribute to the negotiation process can be a valuable resource for crafting a resolution that aligns with their needs. This approach often leads to more satisfactory resolutions.
The client is the decision-maker
It is disconcerting as a mediator to witness instances when some litigators dissuade their clients from speaking, or more concerning, prevent them from settling due to bureaucratic hurdles within the law firm.
Lawyers are there to provide advice and guide their client, but ultimately it is up to the client, not the lawyer, to decide whether to settle and on what terms.
Upholding the paramount principle of self-determination in mediation reinforces a collaborative and client-centered approach which contributes to a more effective and ethically sound mediation process.
Proof of damages
Mediators encounter situations where the plaintiff arrives with new damages, never before seen records of damages or damages figures that undergo last-minute updates on the eve of mediation.
These scenarios can be challenging, especially when plaintiffs expect defendants to come to mediation with the requisite monetary authority to settle the case.
Allowing sufficient time to evaluate damages is pivotal for both parties. This process could take weeks, particularly for high-value claims.
I encourage plaintiff lawyers to proactively review their damages a month before mediation, ensuring the defense has the necessary backup information.
Similarly, I encourage defense attorneys to reach out promptly, at least a month before mediation, to request the amount and proof of damages if not already provided.
This proactive approach will allow adjusters and defendants to conduct a thorough evaluation of the case, paving the way for a more constructive negotiation.
Mediators have time constraints too
Like litigators, mediators contend with demanding schedules too. We often are engaged in back-to-back mediations and may be traveling for these sessions.
Acknowledging the time constraints faced by mediators and refraining from inundating them with hundreds of pages of documents a day or two before the mediation is integral to fostering a productive mediation session.
For the mediator to have ample time to prepare, set up a call about 10-14 days ahead to discuss the case and send them the documents you want them to see.
Sending a deluge of documents, particularly on the eve of mediation, hampers the ability to conduct a detailed case evaluation and undermines their capacity to strategize the most effective approach for negotiations.
Mediation is a collaborative effort, and the success of the process hinges on the understanding and cooperation of all parties involved.
The valuable contributions of litigators in facilitating early information exchange, encouraging client participation and proper preparation fosters a constructive atmosphere for resolution.
By embracing these principles, you not only create a more efficient process, but increase the chance of achieving resolutions that align with the interests of all parties.
Jennifer Grippa is an arbitrator and mediator with Miles Mediation & Arbitration.