Calblog

Mediation Tips

In the comments to the last post, Bobby asks for some mediation tips. First, let me note that I'm not sure that what I find successful will be of any use in a mock mediation as Bobby is doing. A lot of what I try to do is to get people to drop their guard and step out of their roles as lawyer or litigant or insurance adjuster. Once I get them talking to me as if we're friends meeting over a cup of coffee, I make a lot of progress. In a mock mediation, all the participants have is their role so my methods could backfire. For some basic strategies, I have to recommend the links on the right.

That said, my biggest tool is humor and the element of surprise. A lot of the people I see do a lot of mediations. Almost every civil case in the court system is sent to mediation now. I often do away with the formal joint session at the beginning. I admit that the impetus for doing so was the last joint session in a routine auto accident when the lawyers got into a fight and I had to separate them. However, it has been very successful. I rarely got good information until I went into private session and to start in a joint session made everyone a little uncomfortable. People seem to like telling me their side right away in private. If the case is one where they need to exchange specifics, I can get them together later. The unexpected surprise of skipping that joint session usually relaxes most people. (I will always do a session though to lay down the ground rules if I have any sense that I am not dealing with mediation "veterans" but usually I limit the session to ground rules.)

Once I get people talking, I keep them talking. I smile a lot. Don't underestimate the importance of a good smile. My talking is designed to let them know 1. I'm familiar with the process and they can feel confident in me and 2. I'm interested in their case and they should feel free to tell me all about it. A lot of mediators use war stories and I do, too. I share past cases to let them know that I remember them and I'm involved and I care about these cases even if they are "routine." Even if it's your first mock mediation, you can do that. It's kind of like developing a friendship. Tell a story that shows some familiarity with what they're going through.

I have a dry sense of humor and I let it out during mediation. When the defense starts telling me how unreasonable plaintiff's demand is, I'll widen my eyes and say "Really? Gee, all the other plaintiffs have been so reasonable." Insurance adjusters will laugh because they realize that of course the first demand is unreasonable and why the heck are they pontificating at me?

I let them tell me what the case is worth. I remember one mock mediation in which I was a party. The mock mediator heard the other side first and started the negotiations with me at a number that was so far from where I was that we made no progress. Deliver the offer or demand, then listen. I also tell them that studies have shown that I have to walk back and forth at least three times between the sides before I can strike a deal. Any sooner and someone will feel like they went too low or too high. 1. It's true and 2. it inspires patience. I can't tell you how many times I'm at round two and someone says "we're getting nowhere" and I remind them of the three round rule and, sure enough, there's movement the next go-round. Often I won't talk offeres until I have been back and forth once or twice.

One of the best tips I got in mediation training was this: When you get stuck, don't go into either room. Stop and think about what is causing the case to stick. Ask yourself "Why won't this case settle?" Side 1 is too angry? They're too far apart? Someone (the lawyer) wants to go to trial because he or she wants some trial experience? Then work on that point.