Mediation works best when the parties are ready and willing to settle their case.
Some may feel, going into the mediation, that they are not ready to settle. Yet parties often find that the opportunity to meet each other and discuss options creates an environment amenable to settlement.
Often the entire case can be settled at mediation because both parties want to end the dispute and minimize their legal fees, and are unwilling to risk the uncertainty of litigation.
Sometimes parties are willing to negotiate a deal even though their lawyers are advising them that settlement is premature. Other times, parties will be unable to reach a final settlement in mediation because they lack the information necessary for their counsel to fully advise them on the merits of the case, and they are unwilling to resolve the dispute without that knowledge.
Even then, mediation can be a worthwhile exercise in narrowing issues and determining what information each side needs in order to be able to contemplate a final settlement.
The following factors create an environment that favours settlement at or following mediation:
1. Willing parties and counsel.
The parties and their lawyers come with an open mind, willing to suspend their judgement of the other for the purpose of finding a mutually acceptable solution.
2. Courteous, focused parties and counsel.
Parties and counsel are always courteous to and respectful of the other side, respectful of the maxim: “Be hard on the problem, soft on the person.”.
3. Prepared parties and counsel.
The parties and their counsel have thought through, before the mediation, what they are willing to accept and what the other side might be looking for in a settlement.
4. Good communication and disclosure.
Parties listen to each other, speak with each other and respond directly to the concerns raised by the other. All information and documents needed by each party in order to make informed decisions are available.
5. Suppression of ego.
Parties are willing to offer empathy and apologies to the other if it is apparent that this is what is needed to help make a settlement happen.
6. Key players are present.
All individuals who will be expected by the other party to be present are in fact present. Any person who has the answers to questions raised by the other party should be there to enhance the likelihood of reaching “closure”.
7. Parties and counsel have a good handle on the facts.
Lawyers and clients, together, have reviewed all relevant documents before the mediation.
8. No surprises.
Neither party comes into mediation with undisclosed surveillance of the other side. This tactic effectively destroys any perception of good faith. For mediation to be successful, each party must bring to the table, before the meeting, all relevant information. Surveillance is the kind of information that ought to be disclosed prior to the mediation. Such information can be unreliable or explained; failing to disclose its existence prior to mediation creates an uneven playing field going into the mediation. A party entering mediation with undisclosed surveillance will use the process to “set up” the other party rather than negotiate in good faith. This inevitably results in a wasted mediation and litigants who are even more polarized than before the mediation.
9. The process is used as intended.
Neither counsel nor the parties use mediation as an opportunity to cross examine a party or potential witness. Mediation is not the place for trying out cross examination skills. This technique only serves to anger and polarize parties further. Any opportunities for resolution will be lost, not only at the mediation but for some time after. Counsel who cross examine at mediation may do their own clients a considerable dis-service.
10. The opportunity is maximized.
Parties and counsel conduct as much of the mediation as possible in the same room. There is a temptation to stay in separate rooms and have the mediator go between the parties. Although this is an important part of a good negotiation process, opportunities are lost if the parties do not work through the options for settlement together.
Following these few basic rules will go a long way towards making the best of mandatory mediation.