Mediation presents an opportunity — unique in the litigation process — to take a step back from the conflict, climb to the balcony, and look for a mutually beneficial off-ramp that meets the needs of all parties. Accordingly, advocates should replace traditional practices of zealous advocacy with an alternative approach to mediation advocacy. As a longtime trial lawyer and mediator, here are my suggestions for making the most of the mediation process.

I. SELECT THE RIGHT TIME FOR MEDIATION

The right time to recommend mediation is when the parties have all the information needed to make a good judgment about resolution: before suit is started to save transaction costs; after the exchange of documents if discovery is needed; following a key deposition; or just before a dispositive motion, which allows the mediator to leverage the risk factor.

II. CHOOSE THE RIGHT MEDIATOR

Select a mediator suited to the dispute and design a process most likely to result in a resolution. No two disputes are alike. Not every mediator is the same. Sometimes, subject matter expertise is warranted. Sometimes, a people person skilled at managing highly charged emotions is better. Sometimes, a mediator the other side trusts completely is warranted. If the parties have an ongoing relationship, the best choice might be a mediator with experience improving communications or managing joint sessions. Think it through with your client.

III. UNDERSTAND WHAT’S DRIVING THE DISPUTE

Analyze the underlying needs and interests that are driving the dispute — for both sides. This can help you formulate and analyze offers and counteroffers that could result in a win/win settlement. Dig down to better understand what clients really need and want, not simply what they are demanding. Move past positional bargaining to engage in the more robust process of interest-based bargaining envisioned by Roger Fisher and William Ury in their seminal work, “Getting to Yes.”¹

IV. PITCH YOUR WRITTEN SUBMISSION TO THE PROPER PARTY

Aim your mediation summary at persuading the decision-maker on the other side — not the mediator. Tell a good story and attach material supportive of claims or defenses. Highlight your strongest evidence. With less than 1% of federal civil cases² and less than 1.5% of Michigan civil cases going to trial³ today, saving information for trial makes little sense. Address your vulnerabilities and explain how you intend to minimize them.

Mediation is a unique aspect of the litigation process. You’re not trying to persuade a judge or jury; the objective here is convincing the decision-maker on the other side that resolution is in their best interest, so your goal is making sure key points and arguments are heard and considered, which is very different from what you might argue to a judge or jury.

Mediation advocacy requires using the language of diplomacy, framing arguments in a way the other side will listen to. For example, calling the other side a liar is likely to result in consternation and a response in kind. Suggesting that one impediment to resolution is your concern about credibility and setting out your reasoning for that stance is likely to capture their attention — perhaps leading to the reward of an understandable, satisfying explanation.

V. EDUCATE YOUR CLIENT

Prepare your client to get the most out of the process, and coach clients to speak from the heart when presenting at the mediation table. Parties need to understand what mediation is about. It is not a justice process; it’s a dispute resolution process. The goals are different. Getting valuable information requires disclosing valuable information. For negotiations to succeed, parties must recognize a productive offer will typically stimulate a productive counteroffer and vice versa.

VI. EVALUATE THE CLAIM/DEFENSE AND AGREE ON A TOP/BOTTOM LINE

Realistically evaluate the case for settlement. Account for strengths and weaknesses, risks and their magnitude, the range of potential outcomes, the economic costs and attorney fees, and the threat of collateral consequences such as public exposure of private and embarrassing facts. Make certain your client understands the risks and weaknesses. Negotiate with your own client to reach consensus on a top or bottom line.

VII. DEVELOP AN OFFER/CONCESSION STRATEGY

In addition to setting a top or bottom line and an opening offer, do not rely on your instincts or gut to manage offers and counteroffers. Arrive at the table with an offer/concession strategy.

Plan for and anticipate as many rounds as possible to achieve your clients’ settlement goals. For example, if I offer X, the other party is likely to counter with offer Y. If they offer Y, my next move will be X+1. If I offer X+1, they’re likely to respond with Y-1 and so on until the goal is reached.

An offer/concession strategy prevents buffeting of good judgment by emotion. Wrap your proposals in a thoughtful and realistic rationale to explain how you came up with your numbers, which will enhance your credibility and provide a solid foundation for further discussion. Stick to your plan but be flexible to adjust as necessary.

VIII. MAKE USE OF THE MEDIATOR

Be candid with the mediator and ask for any available assistance. Trust the mediator and have confidence in his or her processes, skills, and integrity. Exaggerating to the mediator or trying to manipulate them threatens your credibility. The mediator is generally the only person at the table who will be in both rooms. Ask the mediator for help in understanding how the other side is reacting, what their perspective might be, how they might respond to a proposal, or how to present a proposal in a more constructive way. Ask for assistance in weighing the magnitude of the identified risks, and brainstorm with the mediator on potential outcomes.

IX. BE PREPARED

Know your dispute cold. Since 80% or more of all disputes settle during or shortly after mediation,⁴ this will be the only day in court for most of your clients. Prepare with the same passion, thoroughness, and diligence as you would for a trial. Do not squander the chance to bring this dispute to an end. Review pleadings, outline depositions, pull together the most powerful documentary evidence, and organize your remarks. Have everything at your fingertips at the table, and prepare your client to deliver candid, honest remarks to the other side in the event of a joint session.

X. BE FLEXIBLE AND OPEN MINDED

If the dispute does not resolve, learn all you can. Don’t assume you know where the other side is coming from. You may think you’ve heard it all, but they may refine their theories in light of what they’ve learned from you. Is their story plausible? If it is, of course, there’s a greater risk a judge or jury will buy it. By maintaining an openness to learning, you’re better prepared to prosecute or defend the dispute at trial.

Implement your mediation plan unclouded by emotions — but be flexible. Be prepared to adjust the top/bottom lines with which you started based upon new material, information, or insights brought to light during the process. Your valuation was based on a careful analysis of the facts, law, risks, costs, and more. Mediation is nothing if not a vehicle for the transfer of new information and insight. Accordingly, if you and your client are paying attention, your valuation number should change. If a modest risk turns out to be greater than initially thought, surely the case value is not the same. As your assessment changes, help your client make a sound decision about resolution.

Finally, for most parties, closure has value. It is different for different individuals. Litigation can be an emotional roller-coaster ride — some parties lose sleep during litigation, others experience flashbacks, and for others, litigation is simply the cost of doing business. For many people, there is great value in ending a dispute, putting it in the rearview mirror, and closing the book on a traumatic experience. Understand the value of closure to your client. As more information is exchanged during the later stages of the negotiation process, examine the value of closure more closely.