“I’m truly impressed and grateful for how much you care. It’s rare.”
Happy New Year everyone. This is my third blog post on the topic of mediation possibilities. The idea of this series is to consider all of the implications of treating mediation as a process, not merely an event. My first post introduced this idea and the second post discussed pre-session calls. In this post, let’s talk written mediation submissions. Written submissions are a critical strategic opportunity in the mediation process. Here is a chance to show and tell your perspective on the entire dispute, including legal issues and all other concerns, whether business, emotional, personal or anything else, in a way that is free from local court rules or rules of civil procedure.
In Mediation Possibilities 1, I talked about mediation as process, not just event. The elements of the process include mediator selection, pre-session calls, pre-session submissions, convening, caucusing, concluding and follow up. Because mediator selection is best explored after you decide the kind of process you want, I am leaving that for a later post.
So let’s talk pre-session calls with the mediator. In my opinion, this is the most under-rated tool in the mediation process toolbox. How could something as seemingly simple and mundane as a phone call have a strategic impact on your mediation? Fundamentally, pre-session calls give you the opportunity to plant the seeds for the kind of conversation you or your client needs to have in order for a mediation to be productive.
Mediation is more process than event. It’s not like a sporting event or concert or a movie where you pay to watch. Just showing up is not enough. Pre-work and preparation are critical. Follow up is often necessary. And the session itself can take many different forms depending on the practices of the mediator and the input of the parties. Because the session is 100% participatory, you should have input into what that session will look like. When you think of mediation as process more than event, you will naturally start to think about how you can shape or influence that process to have a session that is productive.
Virtual mediations work. The mediation community is convinced. The early adopters in law firms and companies are convinced. Cases are settling. Cases of every level of complexity, in nearly every field of law. Cases with 2 parties and cases with 20 parties are settling online. But many people are holding back. They are waiting for the more familiar in person mediations to resume. Consider this: we don’t know when the truly in person mediations will happen. Is a mediation where the participants are wearing face masks and required to sit 6 feet apart better than a virtual mediation?
Well, it’s here. The new normal. Extraordinary events bend the curve for everything and we end up with new practices going forward. Video mediations may already be the new normal in areas where in person mediations were always the standard. What I am seeing in my practice and hearing from colleagues and friends is video mediations are working very well. Settlements are happening. Cases are moving in mediation, even if not in court. The availability of video mediations creates some interesting possibilities for all of you who participate in mediations. Here are just a few implications to consider:
Courts are closing. Meetings and mediations are being cancelled. Travel is way down. Can you make progress towards settling your cases in this environment? Actually, yes you can. Quite a bit. One thing I know for certain right now - every mediator everywhere has more time on their hands. You might also. How does this help when people don’t want to be in the same room? Here are 5 things you can do now that might move you towards settlement quickly when we come out of this:
1. Talk to your adversary (or adversaries) about the negotiation process. Maybe you can narrow the focus of the discussion. Maybe there are some things you actually agree on.
2. For those cases where a mediator is already assigned but the mediation has been postponed, polish and submit those pre-mediation submissions. This gives the mediator more time to think about your case and direct you towards issues that might require a greater focus at the mediation.
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I’ve been thinking a lot lately about how advocates select the arguments they will emphasize at mediation. I think most advocates start with their strongest argument in the same way they would structure a summary judgment motion or pre-trial brief. This is intuitive and feels natural most of the time but is it the right approach for mediation? Remember, at mediation the goal is not to convince a judge or jury to decide a case in your favor. The goal is to convince the other side to move in your direction as far and as fast as possible. This leads me to think that when advocates think about making their case at mediation, they should be thinking about what is most likely to resonate with the other side. If you think about that, you may come to some surprising decisions.
When you have a complex, multi-disciplinary problem, should you hire one expert in one aspect of the problem and then hope that person can manage all the other aspects? Probably not. Yet, lawyers and their clients usually entrust a dispute that involves many technical and complex insurance challenges to a mediator who may have no particular expertise in dealing with those insurance issues. There is a better way: co-mediation.