Mediations are a collaborative, problem solving approach to resolving disputes. Lawyers and their clients want to have a successful mediation or they never would have agreed to the Alternative Dispute Resolution process. However, attorneys can, unintentionally, sabotage the process by making easily avoidable mistakes. I recognize how difficult it is for lawyers to stop being adversarial advocates because that’s how we were trained in Law School. The following Five Faux Pas stem from the very real challenge posed by swapping our adversarial hat for our collaborative hat. If you can avoid these five fatal faux pas, you’ll have a much better shot at a successful mediation
1. Falling in love with your case
You are such a good advocate for your clients that you are sometimes unable to take a step back and look at your position with fresh eyes. You have been working on the case for a couple of years (or more) and are starting to believe what you have been advocating on behalf of your clients and ignoring the weaknesses of the case. You need to be able to see the weaknesses, as well as the strengths, of your case to be able to properly advise your clients during a mediation.
2. Being insulted by a demand/offer
A party might make a ridiculous demand or offer. As obvious as this sounds, it’s simply not productive to be insulted by that demand or offer and refuse to respond to and/or counter it. The mediation might end unsuccessfully at that point. You and your client should not be insulted by such a demand or offer because it is just part of the negotiations. A party should not have to bid against themselves. You can just make a commensurate demand or offer so the negotiations can continue. Any movement, even a small one, can contribute to a successful result.
3. Drawing a line in the sand
The problem with sand is that it’s ever-shifting. Drawing a line in the sand signals that this is not a collaborative process. The goal is to resolve the dispute not to win.
4. Cutting to the Chase
The parties should embrace negotiating, not be afraid of it. How much of your day as an attorney is taken up by negotiations? Whether it is mediation, a discovery dispute or a lease, you spend much of your time negotiating. Let the process work, which should include extensive negotiations. Don’t rush it prematurely.
5. Giving up! Never give up!
You will think you’ve reached an impasse that can’t be breached and you are ready to give up and go home. Don’t give up! Find out what is really behind the impasse. Be creative, be patient, be persistent. There is a resolution out there just waiting to be discovered.
If you can avoid these five common mistakes, you have a real shot at concluding the mediation successfully where the parties can find some common ground to settle their dispute.