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today.
Welcome to the audio edition of BHBA's Mediation Training.
In this episode, your host, Sylvia Mayer of S. Mayer Law PLLC, will guide you through
strategies for mediation readiness.
Let's dive in.
Hi, everybody. My name is Sylvia Mayer with S. Mayer Law.
I'm an arbitrator, mediator, and attorney located in Houston, Texas.
I serve as a neutral in disputes all around the country.
Today, we are going to talk about a mediator's steps to prep strategies for mediation readiness.
So let's start with the most obvious.
We are here to talk about mediation.
I'm a mediator.
I'm an arbitrator.
I'm an attorney.
I am only talking today about mediation.
And in that context, mediation involves three things.
Plan, prepare, perform.
We're going to talk about plan and prepare.
I'm combining those into the steps to prep for a mediation.
The performance part is when you're actually in the mediation, and we're not really going
to touch on that today other than tips for preparing in advance for when you're in the
actual mediation.
So here's the basic underlying theme to this entire presentation.
By failing to prepare, you are preparing to fail.
Benjamin Franklin.
It is really important as a mediator that we show up to the mediation prepared.
And so that's what we're going to talk about.
All right, so let's start first with an overview.
I'll talk to you about what we're going to talk about.
And then we'll dive right in.
So here's what we're going to cover in our discussion today.
First we're going to talk about some caveats.
Then we're going to talk brass tacks, the basics of preparing for a mediation.
We'll talk about hitting the books, actually diving in and getting prepared.
We'll talk about being all ears, listening and learning as you prepare for the mediation.
And doing your homework so you've taken the time to think about everything before you
get to the mediation.
And then we'll wrap it up at the end.
All right, so here we go.
Caveat.
So it is really important that you understand that nothing about mediation is one size fits
all.
Every mediation is unique.
And that means that every mediation preparation is also unique.
Some of it is unique to the particular parties, the particular case.
But as a general rule, it is always important to understand the framework within which you
are mediating.
I'm going to talk today based on my experience as a mediator.
But you need to understand that how you prepare and how you plan and sometimes how you conduct
the mediation may be different based on regional differences, practice area differences, specific
court differences, subject matter differences.
It's really important to make sure that you have taken the time to understand local practice,
any local rules, any court orders that govern your mediation.
It's important to understand regional differences and ethical guidelines associated with being
a mediator in that area.
And it's also important to realize that I'm sharing with you my experience, which is based
on my style of being a mediator.
And everybody needs to be authentic.
So what works for me may not work for everyone.
Everyone's style is different.
So take from today's discussion the things that work for you in your region, in your
practice area, in your jurisdiction, and that is authentic to how you engage with others.
And I know I already said this, but it is so critically important.
Always make sure to check any applicable court orders or court rules associated with your
mediation.
All right.
So now we're on to the next topic.
That's tax.
Let's talk about the basics of planning for a mediation.
You have been selected or appointed to serve as mediator.
Now what?
That's what we're going to talk about.
So when we're talking about the basics of mediation and preparation and planning, we
have to start with the most fundamental basics.
What is the format for the mediation?
Is it going to be in person?
Will it be virtual?
Will it be hybrid?
What is the timeline for the mediation?
Is this a half-day mediation, a full-day mediation, a multi-day mediation?
Is this a mediation that is going to start as one day with the potential for adding additional
days?
You need to understand these really basic logistical considerations going in.
And as you're figuring that out, once you've determined your format, if you're going to
do virtual, you need to know what your platform is.
If you're going to do in person, you need to know what your location is.
If you're going to do hybrid, you need both.
And you need to make sure that your location has the capability for you to run the platform
where those who are participating virtually can join.
So let's talk a little bit about in-person.
So as you can see from the image that I'm using for this particular topic, one thing
you have to think about for an in-person mediation is refreshments.
How are people going to have access to something to drink?
Water, coffee, soft drinks, whatever.
How are people going to have access to lunch?
What arrangements may need to be made?
Are they there?
Are they free?
Think through those types of logistics.
You also need to be thinking about the space that you need.
Do you need one room, two rooms, three rooms, four rooms?
What kind of space do you need?
Where is that space located?
Typically in a mediation, you don't want the parties in adjacent rooms.
So if you're using a caucus-style mediation, you don't want them sharing a wall because
then they might hear one another.
So you've got to think about the space that you need for the mediation.
And you also need to think about accessibility.
So maybe you have a fantastic space, but it's on the second floor of a building that unfortunately
does not have a working elevator.
And you have a participant who is unable to use the stairs.
That doesn't work.
So you need to be taking accessibility into your thinking, into consideration when you're
thinking about the location for an in-person mediation.
And make sure you understand some of the most basic things about the space you're using,
like parking and restrooms.
Sometimes mediators conduct mediations at the courthouse.
Sometimes we conduct mediations in one or the other attorney's offices.
They'll host the mediation.
Sometimes we conduct mediations in our own space.
Sometimes we conduct mediations in mediation centers that are set up specifically for mediation.
Sometimes we rent space.
There's a lot of variations on where you can do an in-person mediation.
But you want to make sure you're thinking through all of the logistics so that you don't
get there to the mediation and discover that there's a problem with just basic comfort
or access in the mediation.
Now, if you're doing a virtual mediation, you need to think about what platform are
you going to use?
I will tell you that I use Zoom for my personal, for my virtual mediation because that's something
that I feel comfortable with.
I have learned how to use it.
I feel like I can troubleshoot issues in Zoom.
I know how to set them up.
I know how to minister them.
You have to find a platform that works for you.
And you also need to think about the things I just talked about.
Who is going to administer your virtual mediation?
Are you going to do it?
Or do you have somebody else who will take care of creating breakout rooms, admitting
people, assigning people to breakout rooms, moving people from breakout rooms?
Those kinds of logistical considerations, that needs to be part of your planning for
the mediation.
You also need to think about who's going to do the troubleshooting if there are problems.
The great thing about technology is when it works, it's fantastic.
But sometimes it doesn't work.
So you need to have thought about how you're going to deal with those problems in advance
so you're ready to go and address them should they come up.
So think through all of those issues if you're doing a virtual.
And this is also relevant if you're doing a hybrid.
If you're doing a hybrid mediation, you also need to be thinking about how you connect
that virtual participant or participants into the in-person aspects of the mediation.
So make sure you're thinking about all of those logistical issues when you're planning
for the mediation.
All right, so every jurisdiction and practice area varies in a lot of different ways.
Very often mediators will send out a confirmation letter after the mediation has been set up.
And that confirmation letter often includes logistical information.
This is how we're doing it.
This is when we're doing it.
This is where we're doing it.
This is the fee for doing it.
These are your instructions for mediation statements.
This is the content that you want in a mediation statement.
Whether you want that mediation statement to be confidential or shared or you want to
give the parties the option to share some or all and submit some that's confidential.
So a lot of times those types of information are included in a confirmation letter.
But again, that varies by jurisdiction.
In some jurisdictions, it's just put in an email.
In some jurisdictions, it's ordered by the court and you're not sending out any kind
of confirmation letter.
And there's a lot of variations on that.
But you need to make sure that you are communicating to the parties what it is that you want to
assist you in preparing for the mediation and the logistics of how, when, where the
mediation will be conducted.
A lot of times, again, varies by jurisdiction, mediators will ask parties to sign an agreement
to mediate.
Sometimes this information is incorporated into your confirmation letter.
Sometimes this is a separate document.
Sometimes this was already established in the court's order.
In some jurisdictions, there are local rules or practice rules that may govern these types
of issues.
But some of the things you want to consider addressing, and I'm not telling you you have
to address all of these things, but these are things you want to consider addressing,
might be things that protect you as the mediator, such as an agreement or acknowledgement that
you as mediator are not participating in the mediation as counsel or advocate or attorney
for any of the parties, and that everybody recognizes anything you say does not constitute
legal advice.
Another thing you may want to address in your agreement to mediate or your rules of mediation
or your confirmation letter would be that the parties agree they will not call you as
mediator to testify about the mediation, that they will not subpoena you, the mediator,
to testify in connection with the mediation, those types of protections.
Again, remember whether you can include those, if you should include those, how you should
include those, why would you include those, all of those things may vary based on where
you are and what you are mediating.
So think through all of those issues.
A lot of times these types of documents, agreements, rules, confirmation letters also address protections
from the parties.
It may be provisions that protect the parties by acknowledging confidentiality.
It may be a provision where the parties agree that no one will attempt to serve anybody
at the mediation.
And another thing that a lot of mediators include is a provision that says everyone agrees
and acknowledges that there will be no recording of the mediation.
And as a reminder, if you're doing this virtually, you want to make sure that your virtual
setup is set up so that it does not record the mediation.
And one last thing that I always encourage mediators to address is file destruction.
So make sure that you have addressed in your letter, in your agreement to mediate, in your
rules, in your correspondence, however you want to make sure you cover it off, make sure
that parties understand that within X period of time, you will destroy your files.
And I know a lot of mediators who destroy their files quickly within a day or two after
the mediation is adjourned.
Some who destroy it 30 days later, 60 days later just in case something has come up.
You really, again, need to understand your local practice and this particular dispute
in terms of thinking through that timing.
I will share a story with you.
I had one period of time, I was regularly mediating in a mediation center where there
was a whole bunch of other mediators.
And there was one mediator in particular who had arranged to have a shredder by the door,
bringing the front door to the building where everybody would exit at the end of the mediation.
And as people would be leaving the mediation, he would put his file in the shredder so that
everybody knew he has now shredded his file.
He told them he was going to shred the file at the end of the day and he showed them he
was shredding the file at the end of the day.
And so everybody has their own approach, but it is something that you do want to take into
consideration when you're laying the ground rules for your mediation.
All right, next topic.
It is time to hit the books.
It is time as a mediator for us to move past the administrative logistical stuff and start
diving into the subject matter of this mediation.
It's important as a mediator that we understand the facts and the law of the case.
It's also important that we recognize that I always describe it as I have a symbol full
of information compared to the knowledge that the parties have.
You are unlikely in this process to be able to get to a place where you understand the
case to the same degree as the parties, their counsel, those who have been living this dispute
for perhaps months or years.
But it's your job as mediator, as part of preparing for the mediation, to think of yourself
as snooping or sleuthing.
You're really trying to initially get a basic lay of the land, but also to dig deeper into
the facts and the law and the underlying considerations that have impeded a resolution
in this case.
Over time, as you prepare, you're trying to deepen and broaden your understanding of
all aspects of the dispute.
So, you're going to review the mediation statements that the parties sent to you.
If they haven't provided to you the operative pleadings, the petition or complaint, the answer,
the counterclaim, those types of things, you can ask them for those, or in some places
you can access those on your own.
Make sure you look at those because it's always important to understand what the causes of
action are that are being raised, the primary defenses, even if it is not addressed in the
mediation statement.
And we'll talk about this in just a minute, but you may want to say, hey, your mediation
statement talked about X, Y, and Z.
I saw that your answer, complaint, petition, whatever, raised this other issue.
Is that no longer an issue in the case?
So make sure you understand the operative, or you've read the operative pleadings and
the mediation statements.
If there are pending dispositive motions, then you may want to read those too.
And the reason I say that is sometimes parties come to mediation after they have filed a
motion for summary judgment, but before the hearing.
And hopefully, they have told you that and they have provided you with those pleadings.
But if not, you might want to ask for them or locate them so that you have that information
as well because that argument, those facts, that information could be important in the
mediation process.
As you are reviewing all of this information, take notes.
So I always make like a little margin note that says, you know, notes to self.
So I know that it's notes that I made are my own versus notes that I made based on a
conversation with one of the attorneys or in the course of the mediation.
So take notes.
And it's not just notes to make sure you understand the basic information or the substantive issues
in the case.
Also make sure you're taking notes about questions, things you didn't understand, things you may
want more information on and never, ever be afraid to just ask.
So if you're reading the mediation statement or you're reading the operative pleadings
or the dispositive motion or all of the above and you think, huh, I don't get that, make
sure you ask so that you can understand it.
And then it's also to circle back to something I touched on a few minutes ago.
Important to realize that you start by looking at the forest and then you dive a little in
so that you can see a few of the trees.
But you have to recognize that in this vast forest of whatever this dispute is, you are
unlikely to actually be able to understand each and every tree to use the analogy, each
and every tree in that case.
You simply don't have time as a mediator and there's not a need for you to understand every
single infinite detail of the case.
We need to understand are the most important factors, the things that are driving the parties
or word in the litigation, the things that are impeding resolution, the things that the
parties need in order to resolve.
But realize that it's okay that you don't understand everything about the case.
All right, so we've hit the books and now the next step in the process of preparing
for mediation is to be all ears.
So what do I mean by that?
In all of my mediations, I schedule a pre-call and I have a separate pre-call with the attorneys
for each of the parties.
I use that pre-call to really listen and to ask questions and to build rapport with the
attorneys.
This is my opportunity to really try and understand the things that are going to be important
in this mediation in helping the parties find a path to resolution so that I can go in prepared
and with strategies in mind to help us get there.
So really remember when you're doing these calls with the attorneys for each side that
you want to listen to what they say, but you also want to listen for what they don't say.
And if there's something that strikes you as odd that they're not talking about something,
my suggestion is to ask about it.
And this ties back to something I said a few minutes ago.
If there's some issue in the case that you've read a lot about and seen lots of mentions
of, but it's not in their mediation statement or it's not something that comes up in your
phone conversation, just ask.
Ask them.
This is your chance.
There's no clients on this call.
I keep my pre-calls just counsel.
There's no clients.
This is not going to impact the actual mediation in terms of if you ask something that opens
a can of worms because there's no one else privy.
This is your chance to ask any questions that you may have.
All right.
So I want to take a minute to talk about the value of doing these pre-calls.
So there's really three primary reasons that I like to do a pre-call with attorneys in
every case.
So let me take one step back and say, I mediate disputes of all kinds.
I mediate very simple car accident cases where maybe the parties have already agreed on liability
and all they're fighting about is damages to really complicated multi-party billion-dollar
multi-day mediation.
I like to have a pre-call in all of those cases.
The amount of preparation I do for those types of cases may vary by case, but I do like to
have a pre-call regardless of the size or complexity of the case.
And here's why.
A pre-call gives you the opportunity to understand the case dynamics.
It gives you an opportunity to make sure you understand the case substance.
And it gives you a chance to build rapport with the attorneys in the case.
Now, sometimes we have people who mediate with us over and over and over again.
So we already have that rapport.
But oftentimes, one or both sides, counsel, are people who we have not mediated with.
And in those instances, it's really great to have this chance to get to know them and
to build that connection and rapport with them.
So when I get on my pre-call, I like to start by not talking about the substance.
I like to start by talking about the mundane administrative aspects of the mediation.
All right, let's confirm.
You sent me your mediation statement.
It told me that X, Y, and Z are going to attend the mediation.
I just want to make sure I understand, is that actually the list who's coming to the
mediation?
Side note, you'll be surprised at how often you get on the phone and suddenly the list
of participants in the mediation has changed.
A new person is coming, or a different person is coming, an additional person is coming.
So I always ask that question because it also, not only does it update me on who may be coming,
but it allows me to understand how those people fit.
So if the plaintiff is bringing not just counsel and one client rep, but actually three client
reps, well, who are those three client reps?
What are their roles?
What's their involvement?
And gives you a chance to have dialogue around that.
So I start with trying to confirm the participants in the mediation.
I regularly ask parties to sign an agreement to mediate that contains the rules for the
mediation.
Not everybody does that, but I do.
So in my pre-calls, I will typically ask if I have not received all the signed agreements
to mediate, I will ask about those and get the status of getting those, make arrangements
if there's some logistical issue with having those signed, those kinds of things.
I deal with that administrative task.
In a mediation where you are handling collection of the fee, sometimes somebody else is taking
care of that, but if you are handling it, this is the time to say, hey, by the way,
I haven't received your payment yet.
Do you need my payment instructions?
So use this as a time to make sure that you get paid.
And so I, like I said, start my calls with these things, with these kind of really mundane,
purely administrative matters.
And I tell them on the front end, before we get into the substance, I want to deal with
just some administrative things.
And I do that because it kind of diffuses things and we can deal with the mundane stuff.
I don't have to worry about forgetting about it at the end, but also it allows us to start
having dialogue about something that's just mundane before we really dig deeper into the
merits.
All right, so now that you have dealt with all the mundane administrative aspects of
the mediation, the next thing I like to do is make sure we're all on the same page about
the scope of the mediation.
Now, you may think, why is this an issue?
In most cases, it's not.
In most cases, the scope of the mediation is pretty clear.
It's a car accident, parties are only fighting over damages, here's where they are, or it's
a commercial dispute and it's breach of contract.
And here are the three things they're fighting over about the breach of contract.
And all of that is clear based on the operative pleadings and the mediation statements.
But you still want to check in.
Every now and then, though, you will get mediation statements from the parties and you will read
them and you will go, you think we're mediating about red apples and you think we're mediating
over green zebras.
Those are the times when you really need to have a conversation about the scope of the
mediation.
And regardless, I always like to just check in and make sure that the parties are focused
on mediating the same issues.
So you want to ask about the scope of the mediation.
Make sure you understand.
I read your mediation statement and I understand that all we're talking about in this mediation
is, let's use the car accident example, is damages because for purposes of mediation,
the parties are not disputing liability.
Is that right?
So check in.
Make sure you understand the scope of what you are mediating.
Another topic that I like to do in my pre-calls, even though I also ask that it be included
in the mediation statement, is the history of settlement talks.
So I always include in my list of what I want addressed in the mediation statement the history
of settlement talks.
And let me take just a slight detour and say, I tailor what I want in the mediation statement
for each case.
So it always has certain things.
It always has, tell me who is participating in the mediation.
Tell me what the history of settlement talks are.
Give me a concise description of the nature of the case.
Give me a concise bullet point list of the primary facts or legal issues that are in
dispute and underlying the issues we're to mediate.
It also asks for barriers or obstacles to resolution.
Here I want to talk about the history of settlement offers.
And the reason I want to talk about that is because even though you will have asked them
to provide that to you in their mediation statements, you will be surprised at how many
times in your pre-call you say, hey, I read your mediation statement and it says the history
of settlement offers is X.
Has anything changed since then?
And you will suddenly find out that what was actually in the mediation statement is completely
wrong or that they've had five more conversations or there's some other variation on that theme.
Sometimes I don't even say I see X in the mediation statement.
Sometimes I don't say it because they didn't include it.
Sometimes I don't say it because I have just a spidey sense, a gut feeling that I'm going
to get a different answer and I just say, hey, talk to me about the history of settlement
talks.
Now, I will say you do have to be prepared that every now and then you will be in the
actual mediation when you will learn new information about the history of settlement talks.
I will digress for a moment and share a story.
I had a mediation a couple of years ago where we were three or four hours into the mediation
and had probably gone through three or four rounds of offers when one of the parties in
frustration says, oh, I can't believe it.
He's only just now getting to where he was when we talked last week.
And the attorney and I both looked at the client and said, what?
And it turns out that the two clients had been negotiating without either of their attorneys
knowing anything about it.
And that we had just spent the first three to four hours retreading the ground that they
had already gone on so that now we are halfway, almost halfway through our mediation and we're
just at the same place that they had left off their talks.
But no one but the two principles of the parties had any idea.
So sometimes you get curveballs in mediation.
But if the attorneys have been involved, when you ask in your pre-call, you will hopefully
learn about the history of settlement talks and perhaps more or different information
than you received in the confidential mediation statements.
So the next thing that I always ask in my pre-calls is, are there any interpersonal issues I should
know about?
And are there any reasons that the parties cannot be in a room together?
Even if it's virtual.
The reason I ask for this is, one, it opens the door to understanding some of the interpersonal
dynamics between the clients for all of the parties and sometimes between the attorneys
for all of the parties.
So I try not to focus on, are there any interpersonal issues between the clients?
I just say, are there any interpersonal issues I need to know about?
So if this is an issue between counsel, I can learn about that friction.
If there's an issue between clients, I can learn about that friction.
If perhaps it's an issue between the counsel on one side and client on the other, I can
learn about that friction.
You want to know about this.
And it may come as a surprise to you to learn that even in virtual mediation, sometimes
the parties can't be in a room together.
So I have had at least four or five virtual, fully virtual mediation where the parties,
I have been asked not to have the parties see one another because there are such fraught
interpersonal relations.
So that's something that you want to know about before you get to the mediation so that
you can make accommodations when you are there.
If it is an in-person mediation, you may need to think about the doors that people use to
enter and exit, you may need to stagger your start times, you may need to really think
through very clearly of what protections you can have in place so that just running into
one another in the hallway does not derail your mediation.
I did have a call recently where the parties wanted to do an in-person mediation even though
there was a restraining order due to violence and I declined.
I said, I have no way to keep the parties physically safe.
I am happy to serve as your mediator but under the circumstances, I think it should be virtual.
So you want to understand these dynamics so that you can plan accordingly and keep all
of the participants safe, including yourself.
All right, so now you've gone through all of the mundane aspects of the mediation, you've
gone through the history, you know who's coming, you understand interpersonal issues, it is
time to dive into the puzzle pieces of the substance of this case.
So I like to use this as a way to first demonstrate that I have some general understanding of
the case.
Today I read your mediation statement and I understand that this is a case that involves
X, Y and Z and then I start to ask my questions.
But I don't understand Q. I'd like to understand further Z. I read the case that you refer
to on R. Whatever the issues may be, this is your chance to show them that you read
with a scent and dig deeper so that you understand it.
I will also say it's really important in this part of the conversation to give the attorneys
a chance to talk.
So sometimes I'll say, hey, I read your mediation statement but I'd like to hear it directly
from you.
Can you tell me a little bit about the case?
At that point, you've already been on the phone for a while so they've probably already
picked up that you're prepared, that you understand aspects of the case and this is their chance
to really dig deeper and share more.
And so make sure you're giving them those open opportunities to share information with
you and that you are asking questions.
I know that sounds like a recurring theme.
Just ask.
Keep asking questions.
Asking questions is a great way to learn and to listen and to connect.
One of the things that you may need to talk about when you're on the call is insurance.
So in some cases, it's obvious.
Perhaps it's a car accident case and it is clear that the defendant is an insurance company.
Well, you don't really have to have much of a conversation about insurance for that.
If they want to share with you the policy limits, you can talk about that.
But some cases, it is unclear to you if there is insurance involved.
And you always want to just check in and say, hey, is there insurance coverage for this?
Is the provider participating?
Oftentimes this is a conversation you'll direct to the defendant because they're the
ones who would presumably have the applicable insurance, but it's something to think about
in every case.
In some cases, it's not relevant.
Either, as I said, it's not relevant because it's a car accident case and you're actually
talking to counsel for the insurance company, or it is clear that this is just not a situation
in which insurance would be involved.
But in situations where there might be insurance, just check in.
Just ask about it.
And make sure that the right people are attending the mediation.
This is also a chance to understand some of the emotional challenges in this case.
So I always like to inquire, hey, is your client emotional about this?
Is this a situation where they really need to vent or to tell their story?
Do they need to have a chance to tell me the entirety of the story perhaps more than once?
You really want to touch in on those kind of things.
And the reason you want to check in on those kind of things is because sometimes giving
parties a chance to just be heard, to just be listened to, is the way you unlock the
path to resolution.
During this conversation, you also want to check in on any potential barriers to resolution.
Sometimes there are obstacles that have come up that have prevented the parties from getting
to settlement on their own, and you can find out about those.
Sometimes they haven't really engaged in any settlement talks.
But if you ask counsel, counsel will say, well, you know, my client's really emotional
about this, and I think that is an obstacle we'll have to overcome.
Or the other client has an anger management issue.
Or I think that the other side has some liquidity concerns.
And so we have some constraints around how much they could pay or whether they need payment
terms, whatever it may be.
Check in.
Find out if they have identified any obstacles to resolution so that you can start thinking
about how to overcome them.
And try to think about gently probing into distinguishing between what their client might
want versus what their client might need in order to settle.
You know, I would ask open-ended questions in this conversation.
What do you think a settlement might look like in this case?
Yeah, I can see that your client might want that.
What do you think your client really needs in order to resolve this case?
Are there business considerations we should explore?
Engage in a dialogue so that you can start to understand the distinction between the
want and the need.
You may not explain to them directly that that's what you're doing.
You can.
But that's really what you're trying to probe.
You're trying to probe and understand more deeply how are we going to get from dispute
to resolution.
And make sure that you check in.
And you say, what do you think some options are for settlement?
What are some of the constraints around settlement?
This is kind of the mirror image of what we just talked about, right?
So we talked about obstacles to resolution.
We talked about wants and needs.
Talk about settlement options.
And I like to suggest to the parties that it's really important to remember that in
mediation, we have the opportunity to be creative.
We can do things that they wouldn't get to do if they go to trial and there's a judgment.
We can find a creative solution that works for the parties.
So I often say to the parties, are there any things we should be thinking about in terms
of resolution that involve the non-monetary?
Oftentimes, everybody is so focused on, A, is going to push X dollars across the table
to B, that they haven't thought about some of the ancillary things that might help us
get to settlement.
So remind them that we can be creative and we can take into consideration non-monetary
factors in finding a path to resolution.
Really, really, really use these pre-calls as a way to use your listening ears.
You are really listening deeply to what they have to say and learning from what they have
to say, getting cues from what they have to say.
Near the end of my pre-calls, I almost always say, what have we not talked about that we
should talk about?
Sometimes I say that two or three times because every time I say it, I get a whole other answer.
And so make sure you're doing that because a lot of times that's where you'll get the
most valuable input of the entire call.
All right.
So we've dealt with planning and the logistics.
We've dealt with hitting the books so that we can start to understand.
We have had our pre-calls and we have used our listening ears.
And now it is time to do our homework so that we are fully prepared and engaged as we go
into the mediation.
This is our time to study what we have gathered in terms of information and to reflect.
So you want to reflect on what you've learned.
You want to reflect on your observations.
You want to reflect on any questions you may still have.
You want to reflect on some strategies, some options, some angles you may want to think
about using in the course of the mediation.
Really after you've finished reading everything and having your pre-calls, really take a minute
to stop and reflect on it so that you can go into the mediation, really focused on being
prepared to help the parties find their path to resolution.
So one thing I like to try and take a few minutes to think about is based on what I've
read, based on the input that I have heard in my pre-calls, based on just sort of my
own gut reaction from all the information I have gathered.
Do I think that there are cognitive barriers that have impeded the parties' efforts to
resolve this case?
So it is really, really important to remember that cognitive barriers could involve the
parties, their counsel, and or you, the mediator.
So it's important that we are also aware of our own cognitive barriers as we go through
and that we are willing to be flexible and change our mindset as well.
All right, so the reason I like to think about this, do a little pre-think about this before
I go into the mediation, is so I'm prepared to adapt my approach in any given room at
any given time when I'm going into the mediation.
So let's just explore a couple of cognitive barriers.
Advocacy bias.
So advocacy bias is being so fixated on advocating the strength of a position that we dismiss
information challenging that position.
And I have a little cartoon to demonstrate this for you.
What's the point of looking at your side of this argument when it's wrong?
That is advocacy bias.
Cognitive dissonance.
Sorry, that's a hard word to say.
Cognitive dissonance.
Psychological inability to hear information that contradicts our viewpoint, even if we
would otherwise realize that information is valid.
So here's a cartoon that tries to illustrate that.
It's a group of dogs sitting around the table and he says, or she, or the dog says, can't
you see this isn't a real offer, they're just tossing us a bone.
Well, that's cognitive dissonance.
This is a group of dogs who like spawns, but they're upset because they've been given
a bone.
And so that's one of the cognitive barriers sometimes you deal with in a mediation.
Loss aversion.
This comes up a lot in mediation.
Loss aversion is when we view negatively a proposal that we perceive as a loss, even
if that proposal is actually favorable to us or neutral.
So here's an example.
Which win is ours?
Because the one on the left looks bigger.
Well, win-win, right?
That's the whole concept, win-win.
So that is loss aversion.
She is concerned that we're still going to lose just because our win is a slightly smaller
fund than the other one.
Competitive arousal.
It's exactly how it sounds.
It is when our competitive desire to win overrides everything else.
It doesn't matter what the other side offers.
We must win.
That is what competitive arousal is.
And here's a comic for that.
This is not the kind of out-of-court settlement I had in mind because the other party has
competitive arousal and they ended up in a duel.
Now I will say that one thing that I always look for in a mediation, I'm always trying
to suss out, is this a party or council who will be able to accept a settlement offer from
the other side?
Or will they always need to be the party who proposed whatever the final resolution is?
And that is really a gut reaction.
But it's something to be cognizant of when you're in a mediation.
Because that is a dynamic that sometimes shifts and you may get really close and somebody
says, this is it.
This is as far as I can go.
And the other side says, hey, $1 more.
And the first party is like, no, I'm done.
But the reality is the guy who said $1 more is someone who can never accept an offer from
someone else and has to make a final offer.
And so you want to kind of understand that dynamic and think about it.
And it ties into these cognitive barriers that we have been discussing.
So here's another thing to make sure you're cognizant of as you are doing your final preparation
for the mediation.
Perspectives.
We all bring our own perspective.
We can all have gone through the same experience, seen the same thing, but come away with an
entirely different understanding, perceiving it in a different way.
Parties do it.
Attorneys do it.
Mediators do it too.
So always be aware that that's a possibility, that you may have understood something one
way and be ready and able to say, oh, I understood it this way, but this is actually how that
works or this is what you meant.
Be ready, be flexible.
All right, so now I'm going to take just a minute to talk about what I call the ABCs
of mediation.
So I often say that as a mediator, I utilize the ABCs in mediation.
What does that mean?
That means as mediator, I am analyst, bartender, and chameleon.
So let me take a minute to explain what I mean.
By analyst, I mean that I analyze the information that I've received.
I analyze the facts.
I analyze the law.
But I also analyze the softer things, how I read somebody, what I understand in terms
of their emotional state, what I'm hearing or not hearing in terms of the subtext.
I'm really trying to dig deeper.
I have no psychological training, so I'm not talking about being a psychoanalyst.
I am talking about trying to read the situation, analyzing all of the different impetus that
goes into the litigation and finding a path to resolution.
So to make sure you are using your analytical skills when you're wearing your mediator hat,
both in your preparation and actually during the course of the mediation.
Bartender.
All right.
So I use bartender because of the sort of conventional thinking that people go sit at
a bar and they tell their sub-story and the bartender listens empathically.
That's what this is about.
A big part of being a mediator is listening.
And I've talked about that a lot in this presentation that we need to listen and listen often.
You need to listen to counsel.
You need to listen to the parties.
So when you're actually in the mediation, you need to be prepared to listen to the party,
both parties, all parties, however many parties there may be in the case, whomever needs to
tell their story and however many times they need to tell their story, you have to be prepared
to do that.
You need to be prepared to listen empathically.
I had a case many years ago that involved a really, truly horrific car accident.
And the plaintiff was lucky not only to be alive, but defied all of the odds and was
able to walk again and regain some of his prior level of physical activity.
He started that mediation angry, I mean, enraged angry, because so much had been taken.
He was somebody who had been a long-distance swimmer his entire life.
He was older and he had grandchildren and he had maintained his health through his long-distance
swimming.
He was also a cyclist.
He was in great physical condition when he was in this horrific car accident and it's
a miracle he lived.
No one thought he would walk again, but he did, that he will never ever regain the physical
agility that he had before the accident.
He may never pick up his grandchildren again, etc.
He was enraged at the start of the mediation and he told me his story.
And during the course of the mediation, he told me his story over and over and over.
But you know what changed?
The emotions with the story.
He went from rage to sorrow with tears in his eyes to acceptance and that opened the
door to resolution.
So remember that you need to go into the mediation prepared to be a bartender.
And listen, listen empathically and listen early, listen often.
And a chameleon.
So by chameleon, I mean we have to be prepared to change.
I may behave differently when we're all together, when I'm in a room with one party, when I'm
in a room with another party.
I may behave differently during the course of the day.
For example, I very rarely start out early in a mediation being evaluative.
I usually don't shift to providing any kind of evaluation if I do until later in the day.
I do that in part because I don't know enough.
And I just tell people I'm friend.
I don't know enough yet in order to provide any kind of evaluative input.
But I also do that because I think it's important in the beginning of the mediation for the
parties have the opportunity to talk and less for me to share my views.
So you need to be prepared to be different at different times in the mediation, whether
that is different based on room, party, situation, time, whatever.
Make sure you're flexible.
It's something I've said several times.
Make sure you're flexible.
Make sure you are able to adapt as you go through the mediation.
As you are doing your final preparations for the mediation, really take time not only to
reflect on all the things we've just talked about, but to start thinking about, do a
pre-think around settlement options, settlement constraints, settlement considerations.
Really start thinking through strategies you may want to use in the mediation.
Now this is something that varies significantly by region, by practice area, by subject matter,
by court.
Most of my mediations I prepare in advance a very simple mediated settlement agreement.
There's a whole lot of blanks.
It doesn't have anything for terms, but it has the basic structure for a mediated settlement
agreement.
I do that because in most of my cases the parties expect that I will have something
that we can use to memorialize their settlement even if they're going to later draft more
full-sum settlement documents.
In other jurisdictions this is not done.
There may be ethical guidelines who say you cannot do it.
It may be a choice of the mediator that they will not do it.
It may be a requirement of the court.
It's something you need to understand the dynamics.
But if you're in a situation or in a jurisdiction or a practice area where it's expected, then
make sure you arrive at the mediation with some kind of framework, template, skeletal
structure of a mediated settlement agreement so you can fill in the blanks and be ready
to roll.
All right.
We've done all this prep.
And so now I'm going to sound like your mother.
Make sure the night before the mediation you get a good night's sleep, you eat a healthy
meal, you get some exercise, clear your head.
You want to be fresh and full of energy when you go into that mediation so you can really
focus on helping the parties work through the issues and find their path to resolution.
But remember, you have to tailor everything to the case.
You're going to tailor your preparations.
You're going to tailor the logistics.
You're going to tailor the administrative stuff.
You're going to tailor how you prepare in the final hours for that mediation.
And you're going to tailor the mediation itself to that case, to those parties, to that subject
matter, to the specifics of the unique dispute in front of you.
And remember two things.
One, it's not our choice whether the parties settle.
We are as mediators there to facilitate, to give them the opportunity to open up avenues
for them to find a path to resolution.
It is ultimately their decision if, when, how they settle.
And also remember that the goal of mediation is not for everyone to agree on the facts of
the law.
They don't have to.
The goal of the mediation is for them to agree on a resolution.
All right.
So now we have covered how you plan and prepare so that you're ready to succeed in a mediation
in helping the parties find their path to resolution.
So thank you for joining me for this discussion about steps to prep and strategies for preparing
for mediation and mediation readiness.
I hope you got a lot out of this discussion and I wish you the best of luck with your
mediation practice.
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