"Given the power of our prior beliefs to skew how we respond to new information, one thing is becoming clear: If you want someone to accept new evidence, make sure to present it to them in a context that doesn't trigger a defensive, emotional reaction. [...] In other words, paradoxically, you don't lead with the facts in order to convince. You lead with the values - so as to give the facts a fighting chance." (Chris Mooney, "The Science of Why We Don't Believe in Science".)
Tips for an Effective Mediation (by Sasha S. Philip)
I have been thinking a lot about presentations lately.
This coming Tuesday, January 19, I will be a faculty member at a WSBA New Lawyer seminar on Mediation Basics. In March, I will be speaking at two sessions of the annual Northwest Dispute Resolution Conference. And I was recently invited to be a returning faculty member at an insurance industry “Mediation Claims College” in Baltimore in September. As such, I have been spending quite a bit of my time thinking about what information will be useful to my audience, and how to convey that information in my presentation materials.
While each of my presentations is slightly different, there are some common themes. The most accessible one can be summarized as “tips for an effective mediation”.
So here is a quick checklist to help you prepare for mediation, in order to maximize your chance of success. For my longer article with a more thorough discussion of each of the points below, please visit my blog.
1. Be deliberate about the timing of your mediation
Do not schedule a mediation simply because it is required by the case schedule.
Consider early mediation, which may save time and money, preserve relationships, increase client satisfaction with the legal process, and create opportunities for unexpected solutions.
Consider the impact of pending dispositive motions, depositions, medical examinations and other discovery activities.
Assess whether the case requires a full-day, half-day or shorter mediation.
2. Be realistic in your evaluation of the case
Research the likely monetary value of the case.
Assess fees and costs required to get to trial.
Do not forget to take “soft” costs (non-monetary resources that will be expended before trial) into account.
Assess and understand the implications of your best case and worst case scenarios.
3. Define your goals
Substantive mediation goals may include full resolution, but can also consist of narrowing the case, resolving high-risk issues, dismissing unnecessary parties, etc.
Procedural goals may include identifying drivers and impediments to resolution, exposing strengths and weaknesses of each side’s case, etc.
Do not overlook relational goals, which may include reputational concerns or preservation of an ongoing business relationship.
4. Develop a negotiation strategy
Would a joint opening session or other joint session work be useful or productive, or is the case better suited to shuttle-style negotiation?
Are there specific issues on which you need the mediator’s assistance?
Are you more comfortable using a “competitive” (positional) approach or an “integrative” (interest-based) one, given the specific issues presented by your case?
Assess the potential for non-monetary offers or concessions, such as apologies, letters of recommendation, etc.
Map out your negotiation moves. These can consist of monetary offers or demands as well as non-monetary ones.
What are your alternatives to a negotiated settlement? What is your worst alternative (WATNA), your best alternative (BATNA) and your most likely alternative?
5. Be deliberate in your choice of mediator
Be aware of mediator orientations. A mediator may tend towards evaluative, facilitative, transformative, etc.
Consider the importance of subject matter expertise v. mediation process skills.
Take potentially uncomfortable factors such as race, gender, ethnicity, etc., into account.
Research the mediator on websites, social media, and by seeking input from friends and colleagues.
Request and conduct a pre-mediation telephone call with your mediator, especially if you have not worked with him or her before.
6. Fully prepare yourself and your client for the mediation
Determine who the appropriate stakeholders are and who should attend the mediation (either in person or by telephone).
Make a strategic decision about the roles of the attorney, the client and anyone else attending the mediation.
Consider mapping out your negotiation moves.
7. Submit an effective mediation brief
Submit your brief in a timely manner.
Submit a brief that is specific to the mediation.
Submit only those documents that are relevant to the mediation.
Consider sharing your mediation brief with the other side.
8. Make sure that someone with full authority will be present at the mediation
Out-of-state adjusters or clients.
Other stakeholders (lien holders, Medicare, spouses, etc.).
9. Be prepared to engage in substantive negotiations
Have a candid discussion with your client prior to the mediation.
Objectively evaluate the strengths and weaknesses of your case.
Have a meaningful discussion with opposing counsel before the mediation.
10. Do not make unreasonable demands and/or offers.
The perceived unreasonableness of a demand or offer often causes the other party to respond in kind.
You are almost always better off starting closer to an acceptable outcome and making smaller moves than starting too high or too low and being forced to make larger concessions.
Do not ask your mediator to convey a “bottom line” or “final” demand or offer, unless it really is your best offer and will not change. Doing otherwise may impact your (long-term) credibility.
The WSBA's New Lawyer Education Committee is offering a "Mediation Basics" seminar for new and young lawyers next Tuesday, January 19, 2016. I will be sharing the podium with several distinguished faculty members, and am very much looking forward to it.
The University of Washington will be offering its "Professional Mediation Skills Training" program on January 8-10 and 23-24 , 2016 at William H. Gates Hall. "The basic skills training course will locate mediation among the array of dispute resolution processes, and examine the differences between facilitative and evaluative mediation. Participants will learn a step-by-step process to assist parties in conflict to find mutually agreeable solutions."
If you are unable to make it to the UW's training, the Interlocal Conflict Resolution Group will be offering its Mediator Basic Training on March 7-15, 2016.
Every December, the Seattle Symphony puts on several performances of G.F. Handel's Messiah. Participating in these performances as a member of the Seattle Symphony Chorale has become one of my favorite holiday traditions, as a beautiful way to end the old year and greet the new. Happy New Year!
Sasha S. Philip is the owner and founder of Philip Mediation, providing dispute resolution and conflict management services to clients in Seattle and the Pacific Northwest. When she is not conducting a mediation or arbitration, coaching mediation students or teaching at Seattle University School of Law, you will find Sasha singing with the Seattle Symphony Chorale, cooking, gardening, playing table-tennis or kayaking.