As a highly experienced mediator, Mr. Rose acknowledges that a “perfect” mediation is obviously very subjective. But, relating the story of a recent case he mediated, Rose illustrates what a mediation can look like when everyone comes prepared to collaborate – and the result is as close to perfect as a mediator can ask for.
The key to mediation perfection? In the case Rose details, the main ingredient seems to be both parties’ counsel exhibiting a “skill and willingness to collaborate,” which, when coupled with some case-specific factors and the mediation process choices, led to a speedy and collaborative solution. And this in a parenting case that Rose describes as originally having “all the hallmarks of an impasse.”
Rose’s case study underscores the important role of lawyers in facilitating a successful mediation process and generating durable solutions for clients. Here at Riverdale, if clients have lawyers, we speak with them directly to discuss their role in the process, as well as their views and preferences. Counsel who come prepared to collaborate and advocate, rather than cross-examine or litigate, are instrumental to successful mediations.
In order to assist lawyers in making the most of the mediation process for their clients, we've published a list of “10 Tips for Lawyers When Working with a Mediator.” 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.