Recently, I conducted a complex commercial mediation involving two well established entities. At the outset, the parties were $4.75 million apart. Previous to this mediation, I conducted a high level personal injury case where the parties were $7 million apart. In both cases, I spoke to the parties about using “the long game” strategy, and in both cases, the mediations were a success.
Patience is the key to being a good mediator. As we all know, the Courts are under tremendous pressure to move their caseloads. That pressure can also be felt by mediators. Because the courts are heavily relying on early mediation as a settlement tactic, many of the cases courthouse mediators handle are not yet ripe for mediation and may even drive the parties further apart. One of the biggest mistakes a mediator can make is to rush the case in order try to get a quick resolution. All parties must be willing participants at least to some degree in order to get a mediation started. Once that happens, the mediator must gauge how to best move forward with each party.
A mediator is not a potted plant. While he is a facilitator, he is also at his best when he makes himself educated with the law and the issues surrounding the case. Too often, mediators see themselves strictly as referees, which is not a winning formula. What does an effective mediator do in order to gain successful mediations? Here are some important characteristics you should look for in a successful mediator:
Make time. Preparation is key. The last thing attorneys want - or want their clients to see - is an unprepared mediator. Mediators must spend time with the case prior to the mediation and look for nuances that might provide insight to the attorney’s and client’s reasoning. Preparation allows for a much smoother mediation experience and allows the mediator to not become defensive when a sticky issue comes up. When the actual mediation begins, a mediator shouldn’t be impatient, but rather take the time so the parties don’t feel as though their money isn’t well spent.
Understand the speed at which each party is moving. A good mediator should be able to almost immediately gauge if a party is either motivated to settle or on a fact finding mission. That doesn’t mean the case won’t settle; it assists the mediator in developing his own strategy and how to effectively communicate with the parties.
Be open to continuing the mediation. Should the mediation hit roadblocks, that does not mean the mediator and the parties should give up. Rather this is still an opportunity for the mediator to determine the willingness to take a break and come back at some future date. A mediator should look for even the little things that give hope to the parties in gaining a successful outcome. The cost of continuing the mediation is significantly less than a full blown trial. If the mediator shows he doesn’t want to give up on the case, it will demonstrate to the parties that there is hope for an ultimate settlement.
Cooling off period. Many times the parties need to step away and re-evaluate what they and their opponents are saying. Perhaps they feel their adversary doesn’t “get it.” That’s a normal feeling in litigation. A good mediator will see this and not rush the parties to get back together to continue the session; instead, he should offer a cooling off period where the parties can reevaluate the strengths and weaknesses of their case and use the benefit of time to reflect. The mediator should give a time period in which the parties can consider their case and then perhaps come back to the table, while occasionally checking in and advocating the benefits of ultimately settling the matter.
Understand each parties perspective. Herein lies a potential stumbling block. Neither party sees the case as the other does. For an experienced mediator, this can create the perfect opportunity to reengage the parties. A good mediator should take the time to speak with each side. Learn and understand what each party believes and is saying. Relate to the party you’re listening to. By doing this, the mediator will gain trust and the parties will be more willing to listen to the mediator give another perspective. Then the mediation can continue to move forward.
These are only five of a number of strategies an effective mediator should use when looking at the long game. In next month’s blog, I’ll continue with other strategies related to patience and the long game; in the meantime, I hope you have found these initial strategies helpful when looking for an effective mediator.
~ Hon. Matthew Rosenbaum (ret.) is a retired NYS Supreme Court Justice and founder of Rosenbaum Mediations, PLLC. He has resolved thousands of cases, both small and highly complex. He currently has resolved over 90% of ADR matters. For more information, go to www.RosenbaumMediations.com.
