Mediation is often the best opportunity to resolve a dispute efficiently and cost effectively.
However, attorneys sometimes make critical mistakes that weaken their negotiating position and reduce the chances of a successful outcome for their client.
Here are five common mediation mistakes and how to avoid them:
Withholding key information for too long
Some lawyers treat mediation like litigation and hold back important information.
While strategic withholding may have a place in litigation, it can be counterproductive in mediation.
If the opposing party does not have enough information to fully assess their risk, they may be unwilling to negotiate in the same settlement range.
Surprisingly, some lawyers come to mediation without having provided key information on damages or experts, which can hamper productive settlement discussions.
Instead, attorneys should consider what evidence is necessary to encourage settlement discussions.
Providing key documents or expert opinions in advance can help the other side evaluate their weaknesses, making them more likely to engage in meaningful settlement discussions.
Letting emotions take control
While disputes are naturally emotional, allowing emotions to take over the negotiation process can derail a settlement.
This applies to both clients and attorneys.
Attorneys sometimes let their desire to win or their frustrations with the opposing counsel impede a productive dialogue, while clients may focus on principle or revenge rather than how to reach a practical resolution that meets their needs.
Lawyers who manage their client’s expectations before and during the mediation, and who guide their client to focus on the goals have more success in finding a resolution.
Having conversations with the client about the give and take of mediation and helping them anticipate emotional triggers, like first offers or sensitive topics that are unavoidable at trial, can help them from taking unproductive negotiating postures based on emotions.
Sticking too rigidly to a bottom line
Walking into a mediation with an inflexible bottom line can be a major barrier to settlement.
While it is important to know what constitutes an acceptable resolution in your client’s mind, settlement negotiations require flexibility.
Coming in with a take-it-or-leave-it attitude can shut down productive discussions before they even start.
Many times, lawyers learn something in the mediation and it is a mistake to turn a blind eye to information that may cause a client to adjust its settlement posture.
Attorneys should approach mediation with a range of acceptable outcomes.
In some cases, considering creative solutions such as contract modifications, structured settlements or nonmonetary concessions, lawyers may achieve results that are better for their clients than they initially expected.
Failing to leverage the mediator effectively
A great mediator is not just a number carrier, shuffling offers and counteroffers between the rooms.
Using the mediator in this way wastes the advantage of an effective mediator who can help guide the parties toward resolution.
A skilled mediator can challenge unrealistic expectations, provide objective risk assessments if requested and suggest solutions that parties may not have considered.
Attorneys who engage the mediator, ask for the mediator’s perspective on particular sticking points, or use them to break an impasse may find the mediator useful in helping to achieve a settlement.
Underestimating the power of a well-crafted mediation statement
Some lawyers do not take advantage of a mediation statement at all, missing a valuable opportunity to frame the discussion before mediation even starts.
Others make the mistake of a generic or overly aggressive mediation statement, which can set the wrong tone for negotiations.
While your mediation statement should clearly outline the facts, key legal arguments and damages, it should also signal a willingness to negotiate.
Some of the best mediation statements I have seen are written with the opposing party in mind – helping them to see the risks of their side and the benefits of settlement.
Success at mediation involves more than just showing up.
By avoiding these common mistakes, you can increase your chance of a favorable settlement and avoid costing your client the case.
Jennifer Grippa is an arbitrator and mediator specializing in construction and complex commercial litigation.