In my last article, I discussed five components to effectively handle a long and protracted mediation. I introduced five important strategies to help make these types of mediations successful. Here are five more strategies that demonstrate how an extended mediation may go from failure to success.
Understand. An exceptional mediator must actually learn and know the law. Read the case law, if any are given. A mediator should feel comfortable asking questions and doing independent research so they have a firm grasp on the law as advocated by each side. While this may seem like an obvious fact to some, I am constantly amazed how many mediators brush past the law in an effort to obtain a quick settlement. It’s lazy and makes a mediator more un-relatable. In understanding the legal analysis made by both sides, you can have a deeper dive in discussion and you develop a bond that makes it easier to navigate a protracted negotiation.
Get Creative. About a year ago, I handled a mediation that stalled. The parties knew I was willing to continuing working with them but there was an added dimension that had the ability to be a considerable stumbling block. The matter before them had an added element of required approval by an elected governing board. That board had reservations about settling the matter. I offered to personally go to the board and speak with them during one of their evening meetings. Both parties readily agreed. I held a candid discussion and offered to answer any questions to allay further concerns. My meeting with the board convinced them of the merit in settling their long-standing case. Getting creative and thinking outside the norms of a conventional mediation by willing to go the extra mile can reap huge dividends in a mediation.
Look for a Hook. Find any “common denominator” between the parties to help them remain engaged. I recently had a complex construction mediation where multiple parties were arguing over who was responsible for damage to a large commercial structure. I noted that both parties used the same unique term to describe something that had been used on the roof of the building in question. I took the time to learn about that term and then asked very specific questions about it to further understand it. Both parties immediately re-engaged and clearly felt I understood an important and technical aspect of the case. Additionally the parties felt a connection and that I understood the case before me. The matter settled.
Gain Trust. Don’t be afraid to talk to the parties, as well as the attorneys. Keep in mind that the parties are likely paying your fee. They want to have the feeling that they received value for the mediation - even if it ultimately isn’t successful. Talk with the parties so they feel that you understand their claim. They will in turn trust you - and the process. Additionally, never hesitate to compliment their legal advisors. They will appreciate the value they also received in hiring competent lawyers and the lawyers will feel more comfortable, or at least appreciative, in working with the mediator.
Empathy. This important component can easily be overlooked. Empathy is effective if it is genuine and can gain further trust and engagement by the parties. When I was on the bench and charged the jury, I always concluded by reminding them that “the dispute between the parties is a serious one and is no passing matter.” As a mediator, I take this to heart. By doing so, I am conveying to the parties that I know their matter is extremely important and should be treated with utmost care. Many of my successful mediations dealt with the fact that the parties felt that I was relatable and understood where they were coming from.
I’ll conclude by letting you know that over the past year, I’ve had several matters that have stretched in length from taking several months to almost a year to successfully conclude the mediations. Utilizing the strategies in these past two articles have served me well in helping to resolve matters with satisfied customers. I hope you find these traits in the mediators you next use.
~ 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.
