It is no secret that choosing the right ADR provider and mediator can make all the difference in the outcome of your dispute. However, developing a sound strategy before entering the mediation process is just as important in determining the outcome of your case and your client’s overall satisfaction.
In celebration of National Mediation Week, we asked Hon. Philip L. Bronstein, (Ret.), a senior mediator and arbitrator at ADR Systems, what he thinks are the five most important topics attorneys should consider when preparing for mediation. Judge Bronstein gave the following advice.
Prepare the Facts
According to Judge Bronstein, marshalling the facts of the case should be the first step in planning for mediation. If the case comes to mediation in its pre-litigation phase, doing as much discovery as one would for trial could potentially make the mediation process less efficient than parties had hoped. To avoid this scenario, Judge Bronstein suggests focusing on the facts that directly inform your position and claim for damages. As Judge Bronstein explains, there is usually no need to marshal all of the facts in mediation because parties are negotiating a resolution rather than arguing for their position to a judge and jury. What is most important is that you can succinctly explain your position and back up your numbers.
Prepare the Numbers
Keep in mind that the numbers you bring to the table should be commensurate with the circumstances surrounding the case. Judge Bronstein warns that unsubstantiated numbers are likely to offend the other side and are counterproductive to the process. That is not to say that parties should only make offers or demands that resonate well with the other side; there would be no need for mediation in the first place if parties were never far apart. However, Judge Bronstein emphasizes the importance of being reasonable and not antagonizing the other side with unrealistic figures. Parties should tether their numbers to facts, not base numbers on what they feel they deserve.
Prepare Your Client
The first step in preparing realistic numbers is to manage your clients’ expectations. Judge Bronstein recommends explaining to clients beforehand that the process is about give and take, and that they must remain flexible. You should also explain the role of the mediator to your client. For instance, clients should know that although the mediator is a neutral third party, he or she will likely test the strengths and weaknesses of each side’s position. Tell your client that the mediator engages in this process in order to help parties move closer to an agreeable settlement, not to advocate for either side. Finally, Judge Bronstein suggests telling clients that they can also address non-legal issues in mediation. Although it may not directly affect the outcome of the case, clients often leave with a fuller sense of closure if they are able to confront the personal or emotional issues that often surround disputes.
Prepare to Listen
Parties should also prepare to listen and amend their position as necessary. As Judge Bronstein explains, negotiations often break down when parties talk past each other and refuse to reconsider their original stances. When parties listen respectfully to the other side, it shows commitment to the process and encourages cooperative negotiation. Additionally, do not underestimate how helpful it can be for clients to hear from the other side. Clients who were at first resistant to mediation sometimes come around after hearing the issues from another perspective.
Prepare to Leverage the Mediator
Judge Bronstein’s final tip for attorneys headed to mediation is to prepare to leverage the mediator. Counsel can ask the mediator to act as a voice of reason when the other side, or even their own client, needs a “reality check.” Judge Bronstein explains that parties may be more easily persuaded to reconsider their position if this is encouraged by the mediator. Although the mediator must remain neutral at all times, they may occasionally “take ownership” of an idea to present to opposing counsel or a client in order to move the process along.
Preparation for mediation should be taken as seriously as preparation for trial. However, the way in which attorneys prepare requires a different mindset. The goal of any mediation is for parties to work together toward resolution. In this, counsel must bypass their roles as litigators, and think like negotiators. When handled with care, mediation can be the right tool for settling your clients’ disputes as efficiently and cost-effectively as possible.
Hon. Philip L. Bronstein, (Ret.) is a skilled mediator and arbitrator with experience resolving thousands of civil litigation cases by settlement or adjudication. Before his time on the bench, he briefed and argued numerous cases before the Court of Appeals for the Seventh Circuit, the Illinois Supreme Court, and the Illinois Appellate Court. As a lawyer and judge, he has been involved in many issues that have led to the creation of appellate case law in the areas of taxation, civil rights, personal injury, and nursing home disputes, among others.
To read his full bio, click here.
To help explain the mediation process to your client, click here.
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