In real estate circles, you hear the old adage: “The three things that are most important are Location, Location, Location!” In mediation circles, it might be more appropriate to say the three things that are most important are “Preparation, Preparation, and Preparation!”
It seems that there are attorney advocates who tend to devote minimal efforts to getting their clients ready, to getting themselves ready, and to getting the mediator ready for a mediation. However, with virtually every judge now ordering mediation as part of the litigation process before a case can be brought to trial, the process of attending a mediation assumes a much greater role in the overall process of resolving a dispute during the course of the litigation. It is easy to assume that detailed preparation is not really necessary for the mediation. After all, the mediation process is just a matter of negotiating back and forth to see if an acceptable middle ground might be found. If that is the view that is being taken, what an opportunity missed! Think about it – – in one room you have the opposing parties, their attorneys, and the agreed – upon (or appointed) mediator, without a court reporter to record the proceedings and without a judge or jury to make credibility or judgment decisions on the “evidence”.
It really is an opportunity not to be missed. Your audience is not so much the attorney for your opposition as it is the attorney’s clients sitting across the table from you. You have your one chance of the entire lawsuit process to speak with them in an informal setting, face-to-face and eye-to-eye. So, get yourself prepared. Know your lawsuit, and your strengths and weaknesses, better than the other side. Talk to those opposing clients across the table, and explain your own client’s position and damages, if that is what you are seeking. Show them why. But by all means, put in the time that it takes to prepare. And use that
Preparation to educate the mediator – well ahead of time. That means providing the mediator with background pleadings, case law, photographs, diagrams, or whatever information the mediator might need that applies to your case. Don’t stop at just the standard “Mediator Questionnaire”. If you provide additional background information, a conscientious mediator is going to do his or her own homework to review what you provide. Preparation, Preparation, Preparation! Don’t miss the opportunity.
MEDIATION AND MEDIATORS: EXPERIENCE MATTERS!
As a young lawyer, I frequently heard the phrase, “One should hire a young doctor and an old lawyer!” I suppose that, as a young lawyer, that was meant to put me in my place, at least somewhat. At that time, I obviously had a lot to learn and many years of law practice ahead of me. However, I think the “conventional wisdom” of that statement is that, a young doctor, just out of medical school, has just learned the latest and greatest in diseases, treatment of diseases and medical treatment, and is most capable at that time in applying this knowledge. A lawyer, on the other hand, just getting out law school has not had the opportunity to stand in front of juries and judges, take a position on behalf of a client, and be willing and able to back that position with knowledge and confidence.
A good mediator not only needs the technical skills of analyzing the legal and factual issues that might give rise to a dispute, the mediator also needs to be equipped with a history of life experiences both in and out of the courtroom. It is that history of life experiences that adds the “people skills” to the technical skills. The people skills come not only from advocating to a judge or jury, the people skills also come from years of assessing controversy, assessing common grounds, assessing not so common grounds, and advising clients on the best overall course of action when all of these things are taken into consideration.
The mediator takes the role of a neutral – that is, the mediator does not advocate for either side. The “solution” in the mediation is one that is owned by both parties, not the mediator. It is the mediator’s duty to assist the parties in finding that common solution. It is the experience level of the mediator that allows a mediator to effectively explore the possibilities of common ground in order to find that unique solution that meets the needs of all sides.
Thirty-five years of law practice, Board Certifications for most of that time in Civil Trial Law and Personal Injury Trial Law, many jury trials, many trials to the court, and the analysis of countless disputes and factual situations provides the background for the “people skills” part of being a successful mediator. That is where experience matters, and that is the “extra” that an experienced mediator can add to the process of finding a solution that can be owned by the parties to mediation.