John Bates has been mediating full-time since 1991 and has conducted more than a hundred lectures and trainings on mediation and has mediated several thousand matters in 30 states.
Most legal professionals think of mediation merely as a process to settle cases, but it also allows you to work collaboratively with your client and to showcase your skills for preparation, advocacy and negotiation. Managed properly, mediation can solidify your relationship with your client and help you to develop future business.
1. Negotiation is all about communication
The mediator should create an environment conducive to effective communication and work to convey the respective parties’ points of view in a way that will ensure they are received and sincerely considered. Let the mediator lead the discussion and try to communicate as clearly and patiently as possible.
2. Involve the Client from the Outset
Proposing mediation to your client shows you are looking for cost effective ways to manage litigation; timing is critical. In the early stages of litigation, your client is upset and may not be thinking about compromise.
3. Managing the Mediation Process
Once your client is open to exploring the mediation option, explain the process, reminding them it is voluntary, nonbinding and confidential. Be sure your client understands that they retain control over the outcome.
4. Involve Your Client
By seeking your client’s collaboration, you will gain their appreciation and gain invaluable insight. Solicit ideas from your client and get their reaction to your plan to manage the process. This will unify you as a team and give your client comfort. Establish mediation strategy and tactics with your client.
5. Prepare a Mediation Brief
Solicit your client’s input. You may obtain useful information. Many clients are skilled negotiators and knowledgeable about realities of litigation. Soliciting their input conveys your respect and appreciation of them, which assures that you can be effective collaborators.
6. Plan for Mediation, Plan for Litigation
Remind your client that what you need to do to maximize your leverage at the negotiating table is far less than what you would have to do to win at trial. You and your client must decide what you will need for the mediation as well as what you might need to do to prepare for trial. Equipped with a budget, you can demonstrate to your client how you are using mediation as a cost-effective way to manage litigation.
7. Stay Connected with Your Client
During the mediation session, look for ways to engage your client and foster your relationship. There can be a lot of “downtime” when the mediator is meeting with the other side. Use this time productively to learn about your client’s interests and things you have in common. Spending time with your client is a bonding experience. Always be aware of your client’s needs and make sure they are met, whether they are process-driven or personal. In essence, make sure your client is comfortable. This will foster communication, enhancing the chances for settlement, and will strengthen your professional and personal relationship.
Mediation is a fluid and flexible experience. By focusing on your client as part of the process, your prospects for success in mediation and for future business are likely to be enhanced.