While every mediator approaches mediation a little differently, there is more to this process than simply trying to help the parties reach a compromise that settles the issues between them. Whether you’re an attorney who mediates, or a mediator who’s relatively new to the game, I’d like to share a “behind-the-scenes” look at five actions I perform at every mediation. I hope this will enhance your understanding of the process, and help you successfully mediate cases in the future.

Action #1: I Make Sure I Understand the Facts, and The Law, About Your Case

First, I am going to make sure that I know the facts and law about your case to the best of my ability. I do that by relying on my experience as an attorney these past 26 years, plus 3 years before that as an insurance adjuster. I also call upon the knowledge I have gained having mediated more than 2000 cases. Additionally, I review and understand any pre-mediation materials you send to me. Finally, I stay current on the relevant CLE’s and changes in cases law and I talk with attorneys following their settlements or get the lowdown on big trial verdicts or crushing defeats.

This homework, for lack of a better phrase, allows me to protect the attorneys and adjusters on both sides of cases who might have to otherwise answer to superiors who may not know as much as they do. In other words, my first goal is to protect the attorneys in both rooms from unreasonable expectations from plaintiffs, claims supervisors, or business clients who do not know as much as the professionals tasked with litigating the case.

Action #2: I Help the Parties Build, or Restore, Bridges

I am going to make sure that the professionals involved see one another accurately and conduct themselves professionally. Litigation can be hard, with pressure that can be beyond intense. It is not uncommon for perceived slights to turn into deepened misunderstandings, and ultimately bad blood. Most of the time, I have had experience with one or both of the lead attorneys or their respective firms, as well as all of the major insurance carriers. My goal is to dispense with any misconceptions about the professionals in the “other room” by dispelling rumors or bad initial interactions.

The upshot of my efforts is to help foster more accurate perceptions which can lead to better collaboration. Don’t get me wrong, sometimes people reveal themselves to be real jerks and I may tell one professional that they are not, in fact, imagining it — the other person is an actual jerk! More often than not, however, I may be able to help broker a peace and build a new foundation for the attorneys and claims personnel going forward that can help them foster their own productive interactions down the road.

Action #3: I Consider the Timing of Sharing Information

From the moment I first introduce myself to the folks participating in each mediation, I am firing on all cylinders to get the most accurate read of the temperature in the other room to best guide and shape your respective communications. One of the biggest tenets of successful negotiations is timing. In my mediations, I often compare myself to the quarterback. The attorneys and adjusters are the coaches who give me directions and call the plays, but I ask for the latitude to “call an audible” if I see something when I leave one room and enter another.

Since I am privileged to be in both rooms, I have an advantage and a better sense of what may or may not work for purposes of tone and message. While I will never contravene a direct order, I will not hesitate to strongly advocate that I be allowed to deliver any important information in a manner I see best to help ensure that it is received as well as possible in the other room.

Action #4: I Pay Attention to the Clock

I am sensitive to the clock. It is no secret that mediators are compensated by the hour, like most attorneys with billable rates. While I cannot control the amount of time it takes to settle a case, I will give several options at each juncture to allow the parties to move things along faster. Sometimes this may mean identifying a midpoint and asking whether that landing spot is acceptable to all of the parties. Other times it may mean that I suggest going to brackets to help bridge large or seemingly insurmountable gaps between negotiating positions.

Other times, if I sense that a plaintiff needs time to process the magnitude of the moment or contemplate, for the first time ever, actual closure, I may suggest that the attorneys slow down to afford a party time to think. Similar issues may be present in the defense room — where negotiations may get much closer than anyone ever thought was possible, and it may necessitate calling supervisors to get more authority to help bridge the gap.

My goal in every mediation is for the parties to be able to reflect on the process after a mediation has concluded and realize that they were afforded multiple opportunities to have an active hand in the pacing of the mediation at various junctures.

Action #5: I Stay Engaged in the Process

I am never going to give up before any of the parties. In-person mediations at Miles Mediation & Arbitration are designed to make clients feel welcome and comfortable. From the breakfast spreads to the warm, tasty lunches, to the snacks and cookies made available throughout the day, we are a professional client service outfit. As the mediator, it is my job to be even-keeled, optimistic, positive, and a constant resource of fresh ideas, even in the face of a certain impasse.

My secret is to dress in comfortable clothes that allow me to model an energetic positivity until all possible permutations of a problem have been exhausted. Sometimes this manifests as me taking the attorneys out of the room to have a brainstorming session about next steps. Other times it might be me entertaining clients to keep their focus and their spirits up. I have also been a shoulder to lean on in especially emotionally draining cases involving the death of a loved one.

Even if there is an impasse, I shift into overtime and work in the days and weeks AFTER a mediation has concluded to make sure lines of communication are established and monitored. I check to see if any changes occurred which would trigger an opportunity to reestablish negotiations. In other words, unless you unequivocally tell me the case is going to trial, I won’t give up on a case.

Conclusion

Before we ever convene to meet in one room for an opening session or meet and greet with all the parties present in a mediation, I have been working behind the scenes — in ways you may not have contemplated — to help put everyone in the best position to reach a resolution by the end of the day. Mediators who use similar strategies are likely to help facilitate better outcomes for all.

*Originally published in the Daily Report and reprinted with permission