Mediation Tips from the Pros

In the April issue of Trial magazine, there's a good article about mediation titled "What mediators really want to hear." It's based on interviews with veteran mediators Judith Meyer, John Leo Wagner, and Joe Epstein, and was written by the editorial staff at Trial.

Here's some of what you'll learn if you can get your hands on a copy, which unfortunately isn't available online to non-subscribers:

• Powerpoint and video presentations are often "boring and pedantic." Even if not, they are often so emotionally overwrought that they irritate the other side into unnecessarily stonewalling. If you're going to make a detailed presentation, take care. On the other hand, photographs and chronologies often help a mediator quickly understand the facts.
• Try to view the process "as a joint problem requiring a solution" and not a "competition to win or lose."
• Make sure you talk to your client about the objective of the mediation. The client should be at the mediation and should be given access to the mediator. Generally, you should let the client speak if the client wants to speak.
• When you're negotiating, don't be a "one-trick pony." That's a lawyer who is always using the same negotiating tactic, mistaking it for something very dramatic: walking out, then returning and walking out again; or drawing a firm line in the sand and promising never to cross it, only to cross it and replace it with another non-negotiable line.

There's much more in the article, which is recommended to both plaintiff and defense lawyers.

Comments

[david giacalone]

Evan, I wish I could see the entire article. My first reaction, as a retired mediator, is that any lawyer who was not already aware of these principles in 2006 should be barred from representing a client at a mediation (maybe even from representing clients period, since part of a lawyer's ethical duty to clients is to understand alternatives to litigation enough to give the client competent counsel about the alternatives.)

My reaction to "The client should be at the mediation and should be given access to the mediator. Generally, you should let the client speak if the client wants to speak" is: I'm glad that I did the kind of mediation where the client and not the lawyer did the talking (and where lawyers were almost never even present).

[Evan]

David: I agree they are simple points. One thing I've noticed in my own practice is that some lawyers forget the simple rules in proportion to how much money is at stake. But it doesn't work that way: the same simple negotiating rules apply whether $200,000 or $2 million or $200 million is at stake.

That point is hinted at in the article, as the examples deal mostly with large personal injury cases. It doesn't come across in my summary though.