Est. 1964

Common Mistakes To Avoid In Mediation

Adam Scott WeintraubLitigation and trial are the mainstay of law and remain the end-game for civil disputes. Sadly, the extended time of a civil suit and the crushing costs of bringing a conflict to trial are daunting. Many have found that mediation is a worthwhile alternative to litigation in resolving disputes. The savings of time and cost against that of protracted trial practice cannot be understated. When coupled with the benefits of keeping control over the outcome of your dispute—instead of allowing sometimes painfully disinterested jurors to make the important decisions in your client's life—mediation is a clear choice to bring conflict to a close. However, when mediating a matter, parties make mistakes that can adversely impact their result. Since these miscues can be easily corrected, the thoughtful professional will have prepared their client for mediation in order to get not only an effective mediation which resolves the matter, but also the best result for the client. Some common mistakes to avoid:

1. Playing Hide the Ball

Before showing up for the mediation, it is imperative to give the mediator an unvarnished understanding of the facts and circumstances underlying your client's dispute. Think of each fact you give the mediator as a different tool (or weapon, if you're inclined to think in terms of warfare). You never know which fact is going to be the one that an effective mediator can use to convince the other side that your client's way of thinking is worth consideration. Or that your own client needs to hear from an impartial third party.

Give the mediator a complete report of your client's position in the dispute being mediated. Sometimes, that fact is buried in a medical record or a spread sheet. In a recent mediation, a page of deposition testimony made all the difference. One party made an offhand statement about overlooking a particular item. The point is, the mediator cannot effectively work in a vacuum. Prepare the mediator for the challenges presented in the other room or by your own client.

2. Digging In

In my experience, litigants have the nearly universal opinion that they are in the right and have a favorable chance to win their case. In other words, the Plaintiff and Defendant both think they're going to win. Obviously, at least one party has failed to evaluate how the facts of their case will be received by a jury. This failure leads to litigants forming unrealistic expectations of their case and also of the mediation process. The party comes in to the mediation with a "drop dead" number which may or may not have any realistic connection to what a jury may come up with.

Two related factors bear comment. The first is that when the mediator is an experienced trial lawyer, the parties can get insight into how their facts and arguments may be received by a jury. It is not at all uncommon for a mediator with trial experience to offer an opinion on the strength of a party's position. Second, in any mediation, it is critical for the parties to hear the facts and law behind the other side's position. Often, a party may over or undervalue a circumstance or fail to grasp how a particular fact may impact a jury. An accurate evaluation must take into account not only what factors the other side weighs heavily, but also why. With this insight, compromise can more easily be reached. In some cases, the settlement is not necessarily contingent only on a dollar amount. Instead, settlement may hinge on something as simple as an apology, or an acknowledgement that one side or another has suffered loss.

All that to say, before the mediation, a party is often without critical information which can be necessary to properly evaluate a claim. Having an open mind and a flexible bargaining position are key, not only so a party can understand the other side's position, but also so one can react to what is being conveyed by the other side and allow a reasonable settlement to take place.

3. Starting Too High or Too Low

Some parties feel that the more extreme their opening position, the better their final outcome. It's simply not true. Demanding $1,000,000.00 on a case that has a value of $10,000.00, or making a paltry offer in a case with towering damages, merely makes for a group of frustrated professionals and hinders mediation. The party that receives the out-of-line demand feels insulted. One extreme position often leads to another; there's no chance for real progress. Even if the mediation does go forward, the extreme party must make huge moves for settlement to take place.

On the other hand, it's possible to start too close to one's evaluation. Then, a party can be left with the feeling that each move towards settlement is cutting too close to the bone. The party can feel cheated because they started with a reasonable number. Starting too low can actually encourage hard bargaining and frustrate progress towards resolution.

Initial offers should not insult the other side, nor should they leave the offering party with no room to move. Instead, a party should aim for a position which will be interpreted as "credible" by the other side. Something that can happen as a result of trial. While a mediator should never be responsible for a particular party's position, he or she can help a party form an offer and can offer insight as to how to effectively respond to the other side's position.

Of course, there are other pitfalls that can ensnare the unwary. However, when the parties work towards settlement with a trained and experienced mediator, a successful

result can be effectively negotiated in matters that, before mediation, appeared to be beyond hope of settlement.

Adam Scott Weintraub is a partner of the Savage O'Donnell Affeldt Weintraub & Johnson law firm. He was trained in mediation at the Straus Institute of Dispute Resolution at Pepperdine University and is a member of the Association of Attorney-Mediators.

Adam Scott Weintraub

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