The title of this interesting article, Annoy the Mediator at Your Own Risk: Negotiation Tactics and Missteps to Avoid, is a little misleading. A good mediator should never get annoyed with you or anyone, for that matter. The more important thought is you should never annoy the other side or your own client. I agree with the author that not having the person with real authority at the mediation can be frustrating. However, with Online Dispute Resolution becoming the “New Normal”, the person with real authority can easily attend the mediation, virtually, without the necessity and expense of travel. Being a “Hyper-Aggressive Advocate” can be counterproductive. Try not to draw a line in the sand. Remember, sands and mediations are always shifting. Mediations are collaborative exercises with you and your client working together with the other side to reach a resolution of the dispute. Finally, be prepared. A good tool in preparing for a mediation is the Mediation Statement. Crafting the Mediation Statement, with your client, allows you to have a real discussion in which you go over the strengths and weaknesses of their case. The discussion should include an explanation that during a mediation a willingness to negotiate and compromise is essential to a successful resolution. Click here to read the article.

Choosing the correct Mediator can mean the difference between success and failure. But Mediators have different styles and philosophies, and each Mediator’s personality is unique. So which Mediator is the right one for you and your client? How do you decide? Here are five tips for you to help you make that important decision:

  1. Know the different styles of Mediators – There are three different styles of Mediators: Facilitative, Evaluative and Hybrid. Although there are articles that discuss other different styles, I find the other styles are just different variations of these three styles.
    • The Facilitative Style – Mediators, who are facilitators, guide the parties to reach resolution of their dispute on their own. The Mediator will help the parties navigate through the negotiations process. The Mediator might suggest how to frame a demand or an offer. The Facilitator will never suggest how the dispute should be settled, rather, empowers the parties to be able to reach a resolution on their own.
    • The Evaluative Style – For all you experienced litigators, you will remember that a lot of Judicial Pretrials are performed in the evaluative style. You go into a Judge’s Chambers, describe the case and the Judge evaluates the case and informs you how the case should resolve. Some Private Mediators use this style.
    • The Hybrid Style – The Hybrid style of mediation combines the two previous styles. The Mediator will guide the parties through the negotiation process. If the dispute does not resolve, with the parties’ permission, the mediator may propose a path to resolution.
  2. Know the process the Mediator utilizes – Joint Sessions, Caucuses, Breakout Rooms? Ask how the Mediator will conduct the Mediation.
    • Joint Sessions – The Mediator will have you and your clients in one room. The Mediator will have you and/or your clients talk about the dispute. The discussion will include the strengths and weaknesses of your positions. Joint Sessions may satisfy your clients need to be heard. The danger is that your client may say something that angers the other side or your client may hear something that hardens their position.
    • Caucuses – The Mediator will meet with the parties separately. In the Facilitative Style, the Mediator may aid the parties in formulating a response to an offer or demand. In the Evaluative Style, the Mediator may discuss with you and your client whether or not your client will settle the dispute pursuant to the Mediator’s recommendation. The Mediator may go back and forth between the parties often making different proposals to settle the dispute.
    • Breakout Rooms – If your Mediation is virtual the Mediator may create breakout rooms where you and your client will be sent. The Virtual Mediation will proceed as if in person using Caucuses. The Mediator will navigate between the breakout rooms and will even be able to create a separate breakout room to be able to talk to the attorneys outside the presence of your clients.
  3. Mediation Statements – Ask if the Mediator requires Mediation Statements. A Mediation Statement gives the Mediator valuable information and forces you and your client to review the case prudently in anticipation of the Mediation.
  4. Get to know the Mediator – You’ve asked the Mediator numerous questions. You’ve discovered what style he or she will utilize. You know the process the Mediator will use during the mediation. Now you need to get to know the Mediator as a person. You need to have a conversation with the Mediator. Does the Mediator’s personality mesh with what you think your client needs in a Mediator?
  5. Know your Client – The dispute is your client’s dispute, and the client will, ultimately, make the decision whether to settle or not. That being said, you, as the attorney, need to know your client. Which style of Mediation will work best for your client? Will your client rely on you to determine what amount is reasonable to accept? Is your client strong willed and has his/her own view of how to resolve the dispute? Does your client want to be in the room with you during the Mediation? Is your client intimidated by the system and would rather be available by telephone? For some clients, active participation can be a cathartic event. They feel they have been harmed and just want to be heard. Other clients find the process to be traumatizing and just want to get the whole thing over with so they can get on with the rest of their lives. Each client is different, so each Mediation and choice of Mediator needs to be approached with your individual client’s needs in mind.

Following these five tips will allow you to choose the Mediator that will have the best shot of helping you resolve your dispute.

As an attorney, you know the drill: the better prepared you are, the more likely you’ll achieve a good outcome for your client. So here are seven keys to effectively prepare for a Mediation:

  1. Determine if your case is mediation-ready – Do you have enough discovery completed to properly evaluate your case?  Perhaps the cost of discovery is a motivating factor for going to Mediation.  Are your clients prepared intellectually, emotionally and financially to settle the dispute?  If not, you have more work to do before you should go to Mediation.
  2. Evaluate your case – Realistically review the strengths and weaknesses of your positions.  Ensure that your client is aware of both. Don’t give your client unrealistic expectations. A fully informed client is essential to resolving disputes.  Explain what will happen at the Mediation.
  3. Prepare a brief Mediation Statement – In conjunction with your client, draft a Mediation Statement to share with opposing counsel that includes: the Procedural History, a Factual Statement, the documents or pleadings that will assist the Mediator, and, relevant Legal Authorities.  You should also prepare a Supplemental Statement that you will not share with opposing counsel that includes:  A statement of the strengths and weaknesses of the Plaintiff’s and Defendant’s Positions, the Settlement Positions of the Parties and any obstacles to settlement.  Indicate who will be present at the Mediation.  This exercise gives the Mediator valuable information and forces you and your client to review the case prudently in anticipation of the Mediation.
  4. Know your Mediator – Talk to the Mediator in advance.  Ask the Mediator questions about his or her philosophy: is he/she a facilitator, evaluator or a combination of both?  Learn about the Mediator’s procedure for the Mediation including joint meetings, caucuses, negotiations, opening statements, and term sheets.
  5. Prepare your Client for the Mediation –  Discuss with your client the procedures for the Mediation.  Explain to your client that a Mediation is a collaborative and problem-solving endeavor.  Explain the process of negotiating and the need to be willing to compromise.  Understand your client’s vision of how a resolution would be structured and the path to achieve such a resolution.  Prepare your client for the length of the Mediation and the numerous twists and turns that might occur on the road to a settlement.  Determine how actively your client wants to participate in the Mediation.
  6. Know your Client – The dispute is your client’s dispute, and the client will, ultimately, make the decision whether to settle or not.  That being said, you, as the attorney, need to know your client.  Will your client rely on you to determine what amount is reasonable to accept?  Is your client strong willed and has his/her own view of how to resolve the dispute?  Does your client want to be in the room with you during the Mediation?  Is your client intimidated by the system and would rather be available by telephone?  For some clients, active participation can be a cathartic event.  They feel they have been harmed and just want to be heard.  Other clients find the process to be traumatizing and just want to get the whole thing over with so they can get on with the rest of their lives.  Each client is different, so each Mediation needs to be approached with the individual client’s needs in mind.
  7. Arrive Early – If the Mediation is online, ask the Mediator to have an online demonstration meeting, so you and your client understand and can work with the online platform.  Just in case the technology goes down, make sure the Mediator has your and your client’s contact information.  If the Mediation is in-person, get to the Mediation site a few minutes early, so you and your client can feel comfortable in the Mediation setting.

Be prepared.  Your client expects nothing less.  The 7 keys provide you a road map to follow in preparation for a successful mediation.

As the world continues to adapt to the realities of the COVID crisis, our attorneys have already completed a substantial number of Online Mediations and have many more scheduled. Lawyers and their clients have begun to recognize that it makes sense to agree to Online Mediation because, quite simply, it works. We have heard from the vast majority of our participants that they think Online Mediation is here to stay because it is as effective as in-person mediation and more cost-effective. Here are 10 key tips that make an Online Mediation successful.

  1.  Don’t Be Afraid of the Technology – With a few minutes of brief instruction, almost all participants become comfortable with the technology. Even those who think of themselves as “technologically inept” learn the system quickly and soon forget about the computer. We regularly hold pre-mediation Zoom conferences to familiarize the lawyers and participants with the technology and to answer questions before the day of the Mediation.
  2. The Process is Private, Confidential and Secure – We take all the necessary precautions, including using strong, randomly generated passwords, unique meeting ids, no public wi-fi and “locking” the meeting once all the participants have joined.
  3. The Zoom Platform – We use Zoom for a variety of reasons including the company’s rigorous commitment to real-time security updates. For example, participants are placed in a Waiting Room and cannot enter the meeting until the Mediator allows them to do so. They are muted and cannot speak to the other participants waiting to join. Once they are admitted to the main meeting, and usually after the introductory group session, the parties are separated into Breakout Rooms for caucuses. The parties can have confidential conversations among themselves while the Mediator is in the other room. The Mediator then moves back and forth between the rooms, and even has the ability to “knock” on the door. The Mediator will always text or communicate before entering a room.
  4. The Mediator is in Charge – It is important that the Mediator is comfortable with the features of the technology. Before something goes wrong, the Mediator should discuss with the parties what to do if they are disconnected or if the internet connection is lost.
  5. Use an Attendance Sheet with Contact Info – On our usual sign-in sheets, we now ask for e-mails and cell phone numbers so that all participants can be contacted, and if necessary, continue the Mediation by phone.
  6. The Mediation is Not Recorded – The Mediation is not recorded. One of our main concerns is to maintain the confidentiality of the process. So, we do not allow the recording of the Mediation by any party.
  7.  Be Careful Sharing Documents – The convener of the Zoom meeting can choose to allow or disallow participants to share their screen. If screen sharing is enabled, it is possible that a participant may inadvertently share his or her computer screen allowing others to see whatever is on their screen, including an open document. We discuss this at the pre-mediation Zoom conference. If the Share Screen function is disabled, the parties should identify the documents they intend to use and share them with the Mediator in advance. They also can be shared via e-mail during the Zoom call. As Mediators, we use our computers, smart phones and tablets because it often is easier to have more than one screen. It also is a good idea to have old fashioned paper copies available.
  8. Treat the Mediation As If You Were Attending It In-Person – This means no eavesdroppers, spouses, children or pets in the physical room where participants are actually located. Participants should have as private and well-lit space as possible. No eating, multi-tasking or doing other work – at least while the Mediator is present in the Breakout Room. The mediation works best if all parties treat the Mediator and the other side with the same respect as if the proceeding were in person.
  9. Follow the Usual Mediation Process – This means having a clear understanding about the process, including breaks, confidentiality, etc. This requires giving more precise estimates of how long caucuses will be or when breaks will end. When the private caucus is completed, participants can click on the Help link, the Mediator will be notified to return to the room. It also means treating all participants with courtesy, respect and patience.
  10. Complete a Term Sheet – As with in-person Mediations, if an agreement is reached, the parties should execute a Term Sheet. This can be signed using a program such as DocuSign or Adobe sign. The Agreement also can be confirmed via e-mail between counsel before the meeting ends

Of course, every Mediation is different, and there are no guarantees that cases will settle. But applying these 10 recommendations will smooth the way for the effective use of Online Mediation. As our society and technology continue to co-evolve, we’re confident it will take up permanent residence in our ADR toolbox.

What will be the “new normal” for the court system after the State reopens? Social distancing will be part of the ”new normal” for a long time. People will be wearing masks for a long time. People will be wearing gloves for a long time. People will be sanitizing court facilities for a long time. So how will these changes impact a court environment which is founded on transparency and openness? And how will they impact our entire Judicial System that is the cornerstone of our democracy and the foundation of all our freedoms?

In order for people to have confidence in the Rule of Law, the courts need to be open to the public. Yes, the Courts are going to have to adapt to this “new normal” for the sake of society.

But even before the pandemic, there were signs that change was in the air. For example, there was a hue and cry that litigation was too expensive. One of the silver linings of the “new normal” might well be a reduction of the cost of litigation.

I see a future where attorneys will be spending less time traveling to court to argue motions, attend pretrials, mediations, or status conferences. Attendance at Short Calendar will be a thing of the past. Video Conference platforms will allow attorneys to remain in their offices and still be “present” virtually, in court.

Every courthouse already has video conference capabilities, presently used to allow incarcerated litigants to appear in court without having to be transported. Imagine every courtroom with the same capability.

Instead of making an attorney travel hours to make a 10 minute argument, the attorneys will make their arguments in open court via video. To ensure the integrity of our Judicial System, the argument would be visible to the public, either in person, by viewing the monitor behind the Judge or by a video recording of the proceedings.

The future, as it turns out, is actually, now. As I write this article, the Judicial Branch has sent out two notifications: the first states, “Effective the week of May 11, 2020, family pretrials and status conferences will be held telephonically” through an online platform; the second states, “Effective May 18, the Judicial Branch will resume its daily schedule of civil pre-trials, trial management conferences, and status conferences. These events will be conducted remotely, either by video link or telephone.”

Arguments on motions and Bench Trials will not be far behind. The logistics for Jury Trials will be more difficult, but not insurmountable. The “New Normal” will be both effective and afford cost savings to litigants.

The world is changing by the minute. I suspect, by the time you read this article, the Judicial Branch will be making more progress and conducting more activities remotely. These changes were coming anyway, but the pandemic has made the future now!

After acting as a Mediator in four Virtual Mediations this week, I found this article to be both interesting and timely. I believe that Online Dispute Resolution (ODR) is the wave of the future. ODR is cost effective and actually cost savings for all of the parties involved in the mediation. I find the article to be of particular interest as it shows that Canada is ahead of the curve.

Read more about Online Dispute Resolution below:

Online and ‘intelligent’ dispute resolution benefits are touted at ABA Techshow

When I sit down to pen an article for the ADR Blog to help Attorneys, I find that I’m naturally drawn to alliteration. The words that sprang to mind were easy for this one: Persistence, Patience, Positive, Palliate, Possible, Prevention and Principle.  Let me talk about how each word can impact your mediation:

1. Persistence– You are going to have to be persistent when you are involved in a mediation.  At one point or another, you will reach an impasse during your negotiations. If you are persistent in your attempts to resolve your dispute; i.e. be creative,  look at how many small agreements you have accomplished, keep the conversation going; you will have a better chance at succeeding in the mediation.

2. Patience– Patience and persistence go hand in hand.  In order to be persistent during a mediation, you, also, need to be patient.  Patience is a virtue. The process needs time to percolate. You might get frustrated by the length of time the mediation takes, but a mediation that achieves a resolution is well worth the wait.

3. Positive – Stay positive.  Negative energy can doom a mediation.  Your attitude does matter, so keep it positive.  Your attitude can impact your client’s attitude, too.  A positive attitude about the progress you are seeing can be contagious.

4. Palliate – Part of staying positive is to palliate the dispute between the parties.  You should take it down a notch and lower the rhetoric; that will go a long way in calming the atmosphere in the room and contribute to a successful resolution.

5. Possible – Anything is possible in a mediation.  You can reach settlements during a mediation that are just not obtainable from a trial.  The possibilities of the types of resolutions that you can see as a result of a mediation are only limited by your own creativity.

6. Prevention –  An ounce of prevention is worth a pound of cure.  A resolution obtained from a mediation might prevent a disaster that may occur after a long and protracted trial.  The certainty of a settlement is better than the uncertainty and risk of a trial.

7. Principle –  Being principled is an attribute that most people find to be wonderful. However, how many times have you heard from a client that they won’t settle because “it’s the principle…”?  A principled party to a mediation can be an impediment to reaching a settlement. You will have to use all your skills as a lawyer to show your principled client that a resolution is more advantageous than going to trial.  You shouldn’t let a principled client get in the way of a good resolution that would be in the client’s best interest.

Well, there you have it.  A few more insights that will help you, as a lawyer, become a more effective participant in the mediation process.