Keys To A Successful
Mediation
Kenneth O. Simon
Keys To A Successful Mediation
Mediations are funny things. Sometimes the parties scratch, claw, fight,
attack, and hammer each other, and move at glacial speed. Other times
they quietly proceed, dance a minuet, and reach agreement at warp
speed. The funny thing is that mediation works in both situations. There
are many reasons why mediations are successful in particular cases and
unsuccessful in others. This article explores:
 some of the keys to successful mediations;
 obstacles to expect along the way; and
 methods of overcoming these obstacles.
Things That Make Mediations Work
Mediations work because the parties want them to work. Let me
repeat: Mediations work because the parties want them to work.
Here are some of the things that are important to the success of a
mediation:
1. A Positive State of Mind
The parties should enter the mediation process with the idea that
the case can be settled. If their attitudes are negative and
expectations low, the mediation does not have much of a chance to
succeed.
2. Good Faith
“Good faith” is an amorphous term that means different things to
different people. What it essentially means is that the parties enter
into the mediation process seriously, with adequate resources to
resolve the case, and negotiate in a reasonable manner.
3. Adequate Authority
We all know that a mediation cannot work if persons with adequate authority to
settle the case are not physically present at the mediation. Frequently, claims
representatives appear at a mediation with authority to settle the case within a
pre-set limit. Sometimes there is no claims representative or client present. In
such cases those present at the mediation must either negotiate within the predetermined limits or communicate by telephone with those with higher
authority. This is an unsatisfactory situation. Persons who are not present at
mediations can be very difficult to persuade. The “feel” and flow of the
mediation are missing and they tend to remain fixed in their positions. It can be
difficult for those present at the mediation to communicate the intangible,
especially when the person at the other end of the phone only wants to know,
“What’s changed since the mediation began?”. Consequently, mediations under
such conditions have a lower chance for success than mediations with all the
necessary players present.
3. Adequate Authority (Cont’d)
Defendants are regularly frustrated when the plaintiff fails to appear with
sufficient authority. This situation can arise when multiple plaintiffs are involved
but only one or two appear at the mediation. Plaintiffs then have exactly the
same problem as defendants: persons present can settle only within predetermined limits. Judges can address these problems by ordering the parties to
appear with adequate settlement authority.
It is important to decide exactly what it means to have “adequate authority” to
settle a case. Most defendants interpret it to mean authority to settle within the
defendant’s evaluation of the case. Most plaintiffs interpret it to mean authority
to settle within the plaintiff’s last settlement demand. Although neither of these
interpretations is satisfactory, frequently cases are settled in an amount beyond
the claims representative’s authority upon the representative and counsel’s
recommendations to someone with higher authority.
4. Flexibility
As anyone who has ever participated in a mediation knows, the
negotiating environment can change quickly. New facts are
brought to your attention, a different “spin” or emphasis is placed
on known facts, or new legal arguments are raised. Any of these
developments can change your perspective during a mediation.
For that reason it is important to be flexible and to adjust your
negotiating strategy accordingly. Parties who are inflexible can,
oddly enough, be successful but only a lower percentage of the
time. Parties who are most often successful are skilled at adjusting
and “expecting the unexpected.”
5. Patience
It is difficult to mediate when one or both sides is impatient. If they
believe the situation is hopeless and want to walk out after one or
two proposals are exchanged, they are selling the process short.
Parties should recognize that a mediation is still a negotiation and
neither side should be expected to collapse. Experience shows that
even if the parties are far apart at the outset, that is not usually the
end of the story. The story continues when the parties are patient
and negotiate step-by-step. When the process is complete, the
parties may discover to their surprise that they had evaluated the
case in or near the same settlement range. If impatience prevails,
however, they never get to make this discovery
6. Realistic Expectations
Mediations get off to a rocky start when the parties have unrealistic
evaluations of the case. If a party insists on a settlement value
outside the range of similar verdicts and under similar legal
conditions, such a party may be in for a rude awakening during the
mediation. Both the mediator and the adversary will attempt to
persuade the party that their evaluation is out of line. The lawyer’s
task is to manage the client’s expectations concerning the value of
their case. Some ineffective lawyers, however, unrealistically
inflate their client’s expectations and work the client into a frenzy.
Obviously, it is impossible to settle a case under these conditions.
7. Preparation
On some occasions the expectations are unrealistic because the
attorney has misevaluated the case. The misevaluation can occur
for many reasons, such as a weak grasp of the facts or
unpreparedness. Successful parties are usually well prepared
parties. They know their case inside out and can present their
positions effectively.
8. Willingness to Listen and Heed
Even well prepared parties need to be able to listen to other views,
including the mediator’s and other parties’ views. The worst
mistake one can make is to put on blinders and not see the warning
signs ahead. The mediation process is designed to provide the
information one needs to negotiate on an informed basis. One
must heed what one has heard and put the ego aside.
9. Adopt an Effective Negotiating Strategy
There are many ways to mediate a case. An important step in the
process is to adopt an effective negotiating strategy. This requires
an assessment of the likelihood of success at trial, a consideration
of the forum and trial judge, the general litigation environment, the
presence or absence of insurance coverage disputes, an awareness
of the limits of insurance coverage, and many other factors. Such
an analysis should result in a better understanding of the “big
picture” and a detailed definition of the client’s goals and
objectives.
10. Utilize Effective Negotiating Tactics
Effective negotiating tactics are necessary to implement the strategy. Such
tactics can include the following:
 encouraging the other side to move by making bold moves without showing
weakness;
 putting on the brakes and signaling the other side that no further big moves
will be made until there is some reciprocity;
 “tit for tat” moves, in which one party moves in virtually the same amount
as the other party (careful, this can also work against you);
 being resolute and taking a hard line (without being abusive);
 “pointing to a number” by signaling a probable settlement range or number;
and
 diffusing anger and emotion with expressions of remorse and apologies.
11. Avoid Ineffective Negotiating Tactics
It is equally important to avoid ineffective negotiating tactics such as the following:

threatening or insulting the other side;

overplaying one’s hand by turning a position of strength into abusive conduct;

unreasonably high opening demands;

unreasonably low opening offers;

refusing to respond to a proposal and demanding that the other side bid against
themselves; and

making the other lawyer “look bad” in front of the client.
Things That Make Mediations Fail
As you would expect, mediations fail when the conditions which
make them work are absent. These conditions include:
 A Negative State of Mind
 Bad Faith
 Inadequate Authority
 Inflexibility
 Unrealistic Expectations
 Unpreparedness
 Unwillingness to Listen or Heed
 Absence of an Effective Negotiating Strategy
 Ineffective Negotiating Tactics
Things the Mediator Can Do to Break the Impasse
A temporary impasse is to be expected during the mediation. There are
as many ways to overcome an impasse as there are obstacles. The
mediator can take a variety of steps to recapture lost momentum.
Among these are the following:
 Creativity. Use creative, unconventional “out-of-the-box” thinking to
solve problems.
 Narrow the Negotiating Range.
Try to close large gaps by
encouraging the parties to negotiate within a specific settlement
range.
 Encourage Bold Steps. Try to create momentum by encouraging the
parties to move in large increments.
Things the Mediator Can Do to Break the Impasse
 Encourage “Baby Steps” if Necessary. On some occasions, big steps are not
a possibility. To avoid the loss of momentum, encourage “baby steps.”
 Be Brutally Honest. The mediator is being paid to provide a “reality check.”
Brutal honesty may be required to bring a party back to the real world.
However, there are times when it is counter-productive to push too hard.
The mediator must recognize when the parties are under stress and give
them the space that they need to function.
 Listen to the Parties. Try to really hear what their position is and respond
empathetically.
 Suggest a Specific Settlement Amount. It may be desirable, if all else fails, to
suggest a possible settlement number. This can be a relief to parties who
cannot close the gap themselves.
Things the Mediator Can Do to Break the Impasse
 Schedule Another Session. The parties sometimes need a chance to get
more information, catch their breath, or regain their sense of balance.
Rescheduling is a good option in these circumstances. The mediation should
conclude with a game plan for further discussions.
 Emphasize the Advantages of Settlement. The parties sometime need to
focus on the primary objective, i.e., to resolve the litigation. By emphasizing
the inherent uncertainty of litigation, and the advantages of a prompt
resolution, the parties can regain their focus on the objective.
 Get Derailed Mediations Back on Track.
Some mediations get off track
before they even begin. For example, miscommunication can occur
between the attorneys regarding the amount of an outstanding settlement
demand or concerning who should make the next move. The mediator must
spend whatever time is necessary to get the parties to the starting gate.
Conclusion
Mediations work because the parties want them to work. When
the parties approach a mediation with adequate preparation and
the right frame of mind, they dramatically increase the mediation’s
chance for success.