A successful mediation hinges not only on the mediator’s skill during the mediation session but also on preparation and work with counsel beforehand. Effective pre-mediation strategies are crucial in laying the groundwork for a productive, and ultimately successful, mediation process. This article will address key mediator strategies prior to the mediation session and during the initial caucus to improve the chances of reaching a settlement — and satisfying the expectations of litigants and their counsel.

Understanding the Parties and the Issues

Before mediation begins, mediators should invest time in thoroughly understanding the nature of the dispute and the parties involved.

1. Gathering information — pre-mediation submissions. As part of the mediation scheduling process, the mediator should tell counsel what he or she expects regarding the submission of a mediation position paper, including relevant documents, pleadings, legal agreements, and any communication between the parties to gain a comprehensive understanding of the dispute’s background and complexities.
2. Initial meetings. After a thorough review of the material submitted by counsel, the mediator should conduct individual meetings with each attorney prior to the mediation. Those meetings, typically held by telephone or video conference, allow the mediator to gather additional facts that were missing from the position papers, as well as to learn what was intentionally not included in the position paper but that the mediator needs to know. (Because most lawyers send their clients copies of their position papers, there is often key information missing.) It is also helpful to identify who will be attending from each side and confirm they have requisite authority to settle the case. The mediator should take the opportunity to establish rapport with counsel and clarify expectations during the call. Thus, these meetings can also uncover underlying interests and emotions that may influence the mediation, including who may be the “problem” in the room. In personal injury cases, identifying key information such as the total amount of liens and unpaid bills is critical, since the plaintiffs are focused on what goes into their pockets based on the offers made during mediation. All this information places the mediator in a position to anticipate challenges and plan accordingly to identify potential obstacles or contentious issues and to strategize responses and interventions effectively in advance of the session.
3. Setting the stage. Creating the right environment is crucial for fostering open communication and facilitating constructive dialogue during the mediation session. The focus should be on parties who have never participated in a mediation, often a “novice” plaintiff. Usually, all the other participants, including the lawyers, as well as business and insurance professionals, are experienced with the mediation process and know what to expect. The newness of the process to the novice party may add a level of anxiety and mediators should be sensitive to such feelings. Selecting the right mediation venue and arranging the logistics make all the difference in starting the mediation session on the right foot.
   1. Choosing the venue: Selecting a comfortable venue can contribute significantly to the parties feeling at ease and more willing to engage in meaningful discussion.
   2. Arranging logistics: Ensuring logistical details such as scheduling, seating arrangements, and dietary requirements are taken care of minimizes distractions and demonstrates professionalism, enhancing the parties’ focus on the mediation process.
   3. Agreement to mediate: It is beneficial to provide a copy of the mediator’s Agreement to Mediate to counsel well in advance of the mediation and to discuss key provisions with counsel prior to the mediation. Two key topics are confidentiality and the fact that the lawyer/mediator will not provide legal advice to any party. Confidentiality is a hallmark of the mediation process in two different respects. The first that the process is confidential and specific offers are generally not admissible in a subsequent hearing, deposition, or trial. The second area of confidentiality involves what the mediator keeps confidential when speaking to an opposing party. Historically, mediators only shared offers and facts that each side specifically authorized he or she should disclose to the other side. More recently, mediators share information learned in one room with the other room, unless the disclosing party asks the mediator to keep that information confidential. Thus, in the later situation, the burden is on the party and counsel to assert confidentiality; otherwise, the mediator can use what he or she learns to move the parties closer together. The mediator should confirm his or her approach to confidentiality with counsel before the mediation starts.
4. Framing the issues and expectations during the first caucus. At the mediation itself, clear communication and managing expectations from the outset help set a constructive tone for the mediation.
   1. Define ground rules. Establishing ground rules for communication, behavior, and confidentiality promotes respect and maintains focus during discussions.
   2. Set the agenda. Developing a structured agenda helps guide the mediation session, ensuring that key issues are addressed systematically. This also allows the parties to understand the mediation’s trajectory and goals.
   3. Decide on a joint session, “meet and greet,” or keep the parties apart. Getting all parties and counsel together for a short “meet-and-greet” session allows the mediator to reiterate the ground rules and gives each attorney to opportunity to introduce themselves and their clients and say a few words if they wish. This is especially important in pre-suit mediations or cases where the parties have not yet been deposed. Counsel and decision-makers can see for the first time how the opposing parties will present to a jury. The mediator should learn at the initial caucus, if not before, whether the parties should not be in the same room because of the history between them. Finally, there are some cases where both sides believe it will be productive to have a joint session to not only discuss ground rules, but substantive issues in the case. Over the past three decades, the joint session has gone from the default method to an exception but is not extinct.
   4. Consider the litigation alternative— the three-legged stool. Mediators should discuss how the offers exchanged during the mediation compare to the litigation alternative. Parties and counsel may want to think about the alternatives like a stool with three legs, including the time, cost, and risk of litigation, which apply to each party in different ways.
      1. Time. What is the timeline for the litigation path through trial, post-trial motions, and the appeal process? Time is usually a more important issue for the plaintiff, unless prejudgment interest is an issue. Otherwise, delays benefit the defense. Many lawyers do not prepare their clients for the timeline after a trial setting. Novice parties may not consider the effect post-trial motions and the appeal process, including the possible remand for new trial remedy, may have on their case. Depending on the jurisdiction, the post-trial time frame could add two years or more following the trial setting. Another important component to the “time leg” is potential lost opportunity costs to parties who must spend time during the discovery and trial phases away from their businesses.
      2. Cost/expense. Mediators should have a frank discussion of the expenses each side will incur for attorney’s fees, expert witnesses, and deposition costs. Often, the novice parties are unfamiliar with the costs of litigation and that those expenses will be incurred no matter the outcome of the case. Attorney’s fees are an issue for the defense in cases where they are paying outside counsel on an hourly basis and are not relevant to plaintiffs whose counsel is paid on a contingent fee basis. The cost for experts and depositions applies to both sides and can be substantial in certain cases.
      3. Risk. Mediators should explain there is no such thing as a “slam-dunk winner” in litigation, especially in jury trials. The “best” cases are no better than 80/20, which means even the “best” cases have a 20% chance of losing. However, a party may hear — for the first time — that his or her case is either 70/30, 60/40 or even 50/50. Often, counsel has not shared with their clients the risks of their case and raising this in the first caucus will help focus those parties on the realities of their case.
   5. Build rapport and trust. Building trust and rapport with the parties is fundamental to fostering a conducive environment for negotiation. Starting with the initial caucus, mediators should work to increase the balance in their “Trust Bank” from each party. Deposits into that Trust Bank at the early stages of mediation will pay off towards the end of the mediation session when the mediator needs to make a withdrawal from that Trust Bank.
   6. Demonstrate neutrality. Mediators must demonstrate impartiality and neutrality throughout the process to gain the trust of both parties and encourage open communication.
   7. Listen actively. Showing genuine interest and actively listening to each party’s perspectives fosters empathy and understanding, which are crucial for facilitating meaningful dialogue and exploring potential solutions.

Conclusion

The effectiveness of a mediation often hinges on meticulous pre-mediation preparation. By investing time in understanding the parties, setting the stage for constructive dialogue, and building rapport and trust, mediators can significantly enhance the likelihood of achieving a successful resolution. Each step taken before the mediation session and during the first caucus play a pivotal role in laying a solid foundation for the parties to collaboratively navigate towards a mutually acceptable agreement, thereby fulfilling the primary objective of mediation — to resolve disputes amicably and efficiently.

*Originally published in the ABA’s Just Resolutions 2024 August Newsletter and reprinted with permission