Can we talk?

As a mediator, there is always a case that you question yourself as to what you could you could have done differently in order to resolve the matter.  My case involved a personal injury case.  It appeared to be straightforward, as the defendant had admitted liability and the plaintiff ended up having surgery allegedly because of the accident.  Unfortunately, the mediation process went sideways before the mediation even began.  While introducing myself to the defense attorney who had arrived first, he said

I’d like to get to the point and save some time and money.  If they aren’t willing to take (25% of the cost of the surgery), then let’s end this and have a nice lunch.

I was immediately taken aback as we hadn’t even signed the mediation agreement yet.  As we went forward with the mediation it went from bad to worse.  Defense counsel refused to provide an opening statement to the other side, refused to comment on the other side’s opening statement, refused to discuss the strengths and weaknesses of his case with me, refused to negotiate and was openly hostile toward me and plaintiff counsel.  Needless to say, the case did not settle that day.

After reading the article The Ten Commandments of Mediation (plus one, and in no particular order), I realized that defense counsel had broken seven of the Ten Commandments of Mediation and that is why the mediation was not successful.

Here is Louis C. Schmitt Jr.’s Ten Commandments + One.  Enjoy!!

1.    Thou shalt remember that mediation is not an adversarial process with a clear-cut winner and loser. Attacking the other side will get you absolutely nowhere. Commenting in a joint session as to the incompetence of opposing counsel, the weakness of the factual and/or legal basis of your opponent’s position and boasting about how you are going to mop the floor with them at trial begets only defensiveness from the other side. It causes them to dig in. It begs for a counterattack. It moves everyone away from the goal of cooperating to bring about a resolution. It does not impress the mediator — quite the opposite. It makes the mediator’s job harder. And, believe me, that’s the last thing you want to do.

2.    Thou shalt make an opening statement. A must. It is your opportunity to talk to the mediator — and, more important, to talk to the other side — about your position. Be informative. Let your client participate. The parties themselves often want and need to be heard. You only get one chance to make a first impression, and this is it. Acknowledge the other side’s position.

3.    Thou shalt be respectful. Treat everyone involved with respect. Be polite. Be courteous. Be helpful. And respect the process itself.

4.    Thou shalt be forthright. Everyone involved in the mediation must be able to rely on what you say. If you say you are at your bottom line or top dollar, you’d better be.

5.    Thou shalt listen. This is really what mediation is all about, both sides listening in a way that causes realization of the true nature of each party’s real interests.

6.    Thou shalt be prepared. Know your position and the reasons for it. Know going in where you can settle — and have a strategy for getting there. Failing to be prepared burdens everyone else and wastes the time of the other participants.

7.    Thou shalt have settlement authority. Don’t leave home without it. Otherwise, what’s the point?

8.    Thou shalt demand a memorandum of understanding in the event of a resolution as to any significant issue at the mediation. Get at least the most pertinent terms in writing prior to the conclusion of the mediation session. Memories can be faulty. There may be buyer’s remorse. Lock it down.

9.    Thou shalt submit a mediation memorandum in advance of the mediation session. It is helpful to the mediator. It saves time. Enough said.

10.   Thou shalt make very clear what is to be kept confidential. Self-explanatory.

11.   Thou shalt consider a sincere apology. Nothing soothes like this balm.