3 min read

Mediation Tip: The Formula for a Meaningful Mediation

Nothing is worse than participating in a mediation and feeling like it was a waste of time. Often, this means that nothing new was truly learned during mediation.

At best, the parties haggled over an exchange of arbitrary numbers. In a worst-case scenario, the parties doubled down on their positions and may have had a heated exchange or two.

Unfortunately, this is a lost opportunity and happens far too often. So what went wrong?

What Not to Do at Mediation

A mediation gone awry has several common components. If we break down the elements of an unproductive mediation, we should be able to reverse engineer the process to create a meaningful mediation.

First, let's look at a recipe for a poor mediation:

The parties schedule the mediation when neither party is ready to mediate.
The parties litigate the case during mediation.
The parties are reactive and do not have a defined settlement strategy.
The parties focus on positions, not interests, and do not share information.

With these ingredients, mediation becomes aimless, frustrating, and futile.

Each side may need additional information to engage in serious negotiations. They repeat the legal arguments they have already made with the Court while sending the mediator back and forth with a number on a legal pad.

Neither has a settlement plan, and they often react poorly to the other side's offers, only to become further entrenched in their positions.

In the end, there is minimal information sharing, no identification of interests, very little rapport or trust, and hardly any problem-solving. This is not a good recipe for dispute resolution.

How to Have a Meaningful Mediation

A meaningful mediation is a mediation in which the parties have either resolved their case, are on their way to resolving their case, or have learned something new during mediation that may help them resolve the case in the future.

During a meaningful mediation, the parties work together towards a common cause of resolution. They must identify interests, share information, build rapport and trust, and solve problems together. In my view, here is the formula for having a meaningful mediation:

The Formula for a Meaningful Mediation

First, schedule the mediation when the parties are ready to mediate. Ideally, no missing information or pending issues should exist that would impede or impact the parties' ability to make decisions. In other words, everyone should have all the information they reasonably need to make an informed decision about settlement. It does not need to be perfect or certain, but they should have enough information on liability and damages to do a risk assessment analysis for either settling or proceeding with the case.

Second, prepare for mediation to resolve the dispute. This perspective is different from preparing to win the trial. A trial is all about zero-sum advocacy for how only you will win. Mediation is negotiation, compromise, and how both sides can win. Before mediation, advise your client on the differences between mediation and a trial so they understand how they differ. Likewise, identify and exchange information with the other side so they can make informed decisions as to your positions on liability and damages.

Third, calculate the settlement value of your case and develop a strategy to manage client expectations and evaluate settlement offers. Have a negotiation plan for the moves to make at mediation. Be proactive by calculating the risk-adjusted value of the case so your client can weigh the options for settling or continuing litigation. Avoid being reactive during negotiations and getting caught up in what the other side is doing. Have your number and march towards it.

Fourth, adopt a mindset for problem-solving and sharing information during mediation. Listen carefully without judgment to what the other side is saying to gain information and insight into their position, concerns, and what they may need to resolve the case. Employ empathy by trying to understand the other side's view, what motivates them, and what they rely upon for their position. Doing this allows you to share information that is needed with the other side or that could change their view of the case.

The Takeaway

If we want a meaningful mediation, we need to change our mindset and preparation. The common ingredient for a meaningful mediation is being proactive and adjusting the intention to work toward a resolution. You can do this by scheduling mediation at the right time, preparing with the intention to resolve the dispute, creating a negotiation plan, sharing information, and engaging in joint problem-solving with your counterpart.

Less conflict. More resolution.