By Bruce A. Blitman, Esq./ Certified Circuit, Family and County Mediator
It’s hard for me to believe I’ve been mediating since 1989. During the past twenty two years, I’ve been privileged to mediate thousands of disputes. When I started out as a mediator, my definition of a successful mediation was pretty simple: if the case settled (and I was fully paid for my mediation services), it was a successful mediation. However, through the years, my definition of a successful mediation has evolved. I’ve discovered that a case can be successfully mediated even if it is not completely-or even partially-resolved at the conclusion of the mediation session. Today, I consider a mediation to be successful whenever the parties and their attorneys are able to exchange information, ideas, and perspectives. When they are able to leave a mediation session with a better understanding of their own interests, needs, motivations and concerns, as well as a keener understanding of the other parties’ interests, needs, motivations and concerns, I believe the participants have engaged in a successful mediation process.
I’ve had the unique opportunity to work with exceptional negotiators from diverse backgrounds and professional experiences. Many of these disputes were settled at mediation. Unfortunately, some were not. After each mediation, I review the case to explore how and why the case ended the way it did. Through the years, I have found common elements present in cases that were “successfully mediated” and absent in those cases which ended badly. In this article, I will discuss 10 key ingredients that should help you and your clients have a successful mediation. If you liberally apply these ingredients when you mediate, you will have the recipe for a successful mediation-one in which you and your clients will get the most out of your mediation experience.
1. PREPARE YOUR CLIENT: Clients are more comfortable during a mediation conference when they understand how the mediation process works. Take the time to educate your client about the basic workings of the mediation process BEFORE the mediation. For example, furnish your client with written materials which explain mediation. Show the client a videotape of what a mediation conference looks like. There are some outstanding videos available. The Florida Dispute Resolution Center (DRC) has produced an excellent thirty-minute videotape titled “Mediation Works.” It can be purchased for approximately $10.00 from the DRC, which is located at: Florida Supreme Court Building, Tallahassee, Florida 32399-1905 Telephone: (850) 921-2910. Time invested in preparing your clients for mediation will yield significant dividends during the mediation process.
2. PREPARE YOURSELF: Well prepared attorneys are an essential ingredient to a successful mediation process. Well prepared counsel know everything they need to know about their file. They are ready and eager to intelligently discuss both the strengths and weaknesses of their client’s case, as well as the strengths and weaknesses of their opponent’s case. Frequently, well prepared advocates will prepare a mediation summary for the mediator (and the client) to review before mediation. They are aware of the governing rules of state and federal civil procedure, and furnish their opposing counsel with copies of their summaries, when required by law. They know what they will need to prove in order to prevail at trial. They have reviewed all pertinent jury instructions with which a jury is likely to be charged. They have all of the necessary medical records, financial records, tax returns, and/or other documentation needed to prove their case available at the mediation conference. They are familiar with personal details of the clients’ lives, such as their age, marital status and occupation, and are well aware of their clients’ emotional and financial needs. All of this information helps them thoroughly and comprehensively present their clients’ perspective during the mediation conference. Well prepared attorneys understand that, during the mediation conference, they are also being scrutinized by their own clients, as well as by the opposing parties and their counsel. They also understand that excellent preparation, coupled with an excellent presentation at mediation, can significantly affect the outcome of the case.
3.KNOW WHAT YOUR CLIENTS REALLY WANT AND NEED: Cases cannot be resolved unless a sufficient number of the parties’ interests and needs can be satisfied. Do the parties want money damages, just compensation, vindication, retribution, an apology, or a “pound of flesh”? In successful mediations, the parties and their counsel understand their own, and the other participants,’ interests, needs, motivations and concerns. This understanding can frequently save attorneys and their clients a lot of time, money, and unnecessary aggravation.
4. HAVE A GAME PLAN: In successful mediations, the parties and their counsel are effective negotiators. They know what they want out of the case and develop a strategy to accomplish their objectives. They understand that the mediation process is a negotiation process. They know where they want to begin and where they would like to finish, and have a flexible strategy for getting there.
5. DRESS FOR SUCCESS: In successful mediations, all of the participants understand the mediation conference is really a prelude to the trial. During mediation, the decision makers (the parties and counsel) have a unique opportunity to look at each other face to face and get some sense of how the parties will present themselves before a trier of fact. They recognize this is not the time for their “casual Friday” attire. Well prepared counsel instruct their clients to dress appropriately and SHOW them what that means. It is amazing how standards of personal taste vary-one person’s definition of “appropriate” can differ dramatically from that of another. In my mediation experience, I’ve found the appearance of an articulate, well-groomed party at a mediation conference has significantly influenced the other party’s evaluation of the case on several occasions. Unfortunately, so has the appearance of an inarticulate, inappropriately dressed party. Effective advocates know their clients and present them in the most favorable light possible at mediation.
6.USE DEMONSTRATIVE EXHIBITS: The use of graphs, photographs, models and other demonstrative exhibits can sometimes be extremely compelling during a mediation conference. The presentation of these exhibits can demonstrate counsels’ professionalism and their strong commitment to their clients’ cases. Sometimes the right picture truly “can be worth a thousand words” — and a significant amount of money.
7. SCHEDULE THE MEDIATION FOR THE APPROPRIATE AMOUNT OF TIME, AND AT THE APPROPRIATE TIME OF DAY: We are all busy people. In successful mediations, the parties and their counsel respect each other’s valuable time. When they choose to mediate they prioritize the case and give it their undivided time and attention. They do not want any of the participants in the mediation process to feel rushed or unduly pressured. An attorney who schedules a mediation conference for 1:00 P.M. knowing he has to attend an important deposition at 2:00 P.M., has done a great disservice to his client and the mediation process. Invariably, effective mediation negotiators try to schedule their mediation conferences for times when they and their clients are at their emotional and physical best. If they know they (or their client) is not a “morning person,” they won’t schedule their mediations for early morning. Similarly, when they know they have to attend a hearing on a judge’s morning motion calendar, they will schedule the starting time for a mediation conference accordingly. They understand it can be considered very impolite to keep their clients, the other parties, opposing counsel and the mediator waiting for them to return from a delayed hearing. As a mediator, I have witnessed several cases unravel before they ever began, simply because one party kept the other waiting for a prolonged period of time.
8. BE PATIENT: In successful mediations, the parties and their counsel demonstrate extraordinary patience and self control. They understand that in many cases, it is virtually impossible for the parties and their attorneys to settle a case in under one hour. In cases that are emotionally charged or technically complex, it may take the parties and the mediator several hours to unravel and identify numerous issues and areas of conflict that have taken years to litigate. By working through these issues calmly and carefully, parties are frequently able to resolve their differences. Mediators should not rush the parties or force them to reach agreements. In successful mediations, cases resolve only when the participants are ready to settle.
9. EDUCATE, DON’T INTIMIDATE: In successful mediations, parties and their counsel may disagree, but they do so agreeably. They use the mediation process to explain their positions to the other parties. They do not engage in yelling, screaming, and name-calling. They understand that such behavior may help them and their clients feel better, but it will not help them negotiate more favorable settlement agreements. Instead, they use the mediation process to calmly justify, document and persuade the opposing parties about the reasonableness of their clients’ positions in the case.
10.DON’T SLAM DOORS OR BURN BRIDGES: In successful mediations, the parties understand there is no rule which prohibits them from settling their dispute tomorrow, next week, or some months after the initial mediation. They use the initial mediation conference as an opportunity to begin a dialogue with each other. They develop a positive line of communication during the mediation process, and build upon this initial rapport. They are frequently able to establish a framework for future negotiations which may ultimately result in settlement. Enlightened negotiators view mediation as an ongoing process, not a “one-time” event. At the conclusion of a mediation session, they do not issue threats or ultimatums, or storm out of the conference room indignantly. Instead, they politely shake hands and encourage future conversations. The liberal use of these 10 ingredients is your recipe for a successful mediation process. Best ‘wishes for good health, good luck, and good mediation.
Copyright, Bruce A. Blitman, 2011. All Rights Reserved.
No portion of this article can be duplicated or reproduced in any way without the express written consent of the author: Bruce A. Blitman is an attorney and certified mediator with a solo practice in Ft. Lauderdale. He is certified by the Florida Supreme Court as a County, Circuit and Family Mediator. Blitman is a Diplomate member of the Florida Academy of Professional Mediators, Inc. and a former President of the Academy. He can be reached at (954)437-3446 and BABMEDIATE@aol.com. His website is www.bruceblitmanesq.wordpress.com and Facebook at Law Office of Bruce Blitman. His office is located at 9050 Pines Blvd. Suite 450, Pembroke Pines, Fl. 33024
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