Two attorneys disclosed how they try to get the most out of mediation at a session entitled “Mediation Dynamics.” These two guys, Lynn Davies, a civil trial lawyer with serious jury trial experience, and Michael Mohrman, primarily a divorce attorney, mediate frequently and have adopted various strategies. How do they prepare? Who should attend? What if they are asked, “Is this your bottom line?” And, why should an attorney ask what is happening in the other room? This blog will provide a brief overview of some of the teaching points in their session.
Preparation. First and foremost, these two guys stressed the importance of preparation. Clients benefit from proper preparation. Further, make sure you get the right parties to attend mediation. Make sure you have the right client attending from your side. And, make sure the other side is sending a person with adequate settlement authority. Allowing a father, wife or other significant person to attend mediation can be a really good idea.
Prepare your clients for mediation. They need to understand the process of mediation. Mediation briefs are an important document for the client (as are opening statements). Clients read the mediation briefs. They need to know that their attorneys are prepared to negotiate the best deal possible. After they have the information, the attorneys and their clients need to strategize. The mediation brief serves as a springboard for this discussion. Without proper preparation, attorneys are less able to strategize about making the first offer and responding to proposals from the other side.
Pre-mediation. Up until a year ago, Lynn Davies had not seen mediators use pre-mediation conferences. Now he sees pre-mediation conferences used regularly and believes can help cases settle. Discuss the allocation of the costs of such meetings up front with your mediator, but do remember it generally greases the wheels for settlement.
Is this your bottom line? Attorneys, rightfully, avoid answering this question. Strategically, they do not want to reveal the extent of their client’s willingness to settle. They want to get the best deal for their client. They don’t lie, but they try not to respond to this question. Experienced mediators generally know the “bottom line” often moves, and elicting a response to this question may stymie the negotiations unnecessarily.
What is going on in the other room? We teach attorneys to ask this question so they learn to think about what the other side wants and needs – like Roger Fisher taught us in Getting to Yes. However, attorneys use this information for other purposes. Attorneys may assume that if the mediators tells them the temperature in the other room, the mediator is also revealing what is occurring in their room. This is partially correct and partially incorrect. Mediators strategically reveal the information to both sides to move the case to settlement. Revealing information in one room does not mean similar information is revealed in the other room. Experienced mediators only reveal information that is helpful to move the case to settlement. Here is the problem: lawyers assume you are giving identical information to the other side. The lesson for mediators is as follows: Some attorneys may assume that you are telling both sides exactly what is occurring in each room. Carefully measure your response to this question of “What is happening in the other room?” Most importantly, ask both sides what you can reveal.
Thanks to Mike and Lynn for a great presentation on strategic use of the mediation process.