Four Principles for More Effective Mediations: What Your Mediator Hopes Litigators Understand

Tue, Mar 5th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Jennifer Grippa

Relatively new to mediation? Or have you mediated a dozen cases — or more — already as an attorney? As a full-time mediator and arbitrator who is immersed in legal dispute resolution every day, I have found there are aspects of the process that could be better understood. Bridging the gap between conflicting parties requires preparation and cooperation, and attorneys can have a significant impact on the success of a mediation.

The following four mediation principles, drawn from actual mediations, show how litigators can contribute to a more effective mediation experience for everyone involved. Knowing how to prepare for a mediation, and how to act at the mediation, is integral to the process.

Let Your Client Have an Active Role

Mediators wish more litigators recognized the importance of letting their clients actively participate in the process and encouraging them to do so. Clients can become frustrated when they sit there listening to the lawyers and mediators doing all the talking, especially when they are given no opportunity to tell their story.

Mediation is an opportunity for your clients to be heard. After all, they are the ones who have lived through this conflict from the beginning of its inception, long before lawyers were involved. Allowing your clients to say anything they want to say is a strategic approach that can positively influence the resolution process.

The importance of clients’ involvement goes beyond mere emotional expression. It extends to their unique insights into the conflict. They have firsthand knowledge of the nuances, motivations, and personal stakes involved. Giving them a voice at the table, encouraging them to express their feelings, and empowering them to contribute to the negotiation process can be a valuable resource for crafting a resolution that aligns with their needs. This approach often leads to more satisfactory resolutions.

Let Your Client be the Decision-Maker

It is disconcerting as a mediator to witness instances when some litigators dissuade their clients from speaking, or more concerning, prevent them from settling due to bureaucratic hurdles within the law firm. Lawyers are there to provide advice and guide their clients, but ultimately it is up to the client, not the lawyer, to decide whether to settle and on what terms.

Upholding the paramount principle of self-determination in mediation reinforces a collaborative and client-centered approach which contributes to a more effective and ethically sound mediation process.

Provide Proof of Damages Before the Mediation

Nearly every mediator has encountered the situation where the plaintiff arrives with new damages, never-before-seen records of damages, or damages figures that undergo last-minute updates on the eve of mediation.

These scenarios can be challenging, especially when plaintiffs expect defendants to come to mediation with the requisite monetary authority to settle the case.

Allowing sufficient time to evaluate damages is pivotal for both parties. This process could take weeks, particularly for high-value claims.

As a mediator, I encourage plaintiff’s attorneys to proactively review their damages a month before mediation, ensuring the defense has the necessary backup information well in advance of the actual mediation.

Similarly, I encourage defense attorneys to reach out promptly, at least a month before mediation, to request the amount and proof of damages if it hasn’t already been provided.

This proactive approach will allow adjusters and defendants to conduct a thorough evaluation of the case and to secure authority to settle, paving the way for a more constructive negotiation.

Respect Your Mediator’s Time

Like litigators, mediators contend with demanding schedules too. We often are engaged in back-to-back mediations and may be traveling for these sessions.

Acknowledging the time constraints faced by mediators and refraining from inundating them with hundreds of pages of documents a day or two before the mediation is integral to fostering a productive mediation session.

For the mediator to have ample time to prepare, set up a call about 10 to 14 days ahead to discuss the case and send them the documents you want them to review. Sending a deluge of documents, particularly on the eve of mediation, hampers the mediator’s ability to conduct a detailed case evaluation and undermines his or her capacity to strategize the most effective approach for negotiations.

The Bottom Line

Mediation is a collaborative effort, and the success of the process hinges on the understanding and cooperation of all parties involved. When litigators facilitate early information exchange, encourage client participation, and properly prepare for the mediation, they foster a constructive atmosphere for resolution.

By embracing these principles as a lawyer, you not only create a more efficient process, but increase the chance of achieving resolutions that align with the interests of all parties.

About Jennifer Grippa

Jennifer Grippa has 22 years of courtroom, trial, and conflict resolution experience. She is a former partner and construction practice group leader of a large 150+ member law firm and is double- barred in both Florida and Georgia. As a Florida Supreme Court Certified Circuit Court Mediator, Registered Neutral in the State of Georgia, and a Super Lawyer in the area of ADR, she resolves complex litigation.