Mediation Best Practices
Approximately 90% of civil cases will settle, with a high percentage of those settling at or in connection with mediation. Therefore, an understanding of the mediation process and the dynamics involved in mediation is critical to successful dispute resolution.
“The Florida Mediation Best Practices Handbook (Second Edition)” began as a local collaborative effort between mediators and counsel in the Hillsborough County Bar Association. It was later expounded upon at the 2022 Florida Bar Convention through a statewide collaborative effort between the Trial Lawyers and ADR Sections of the Florida Bar Association. The current edition of the handbook contains mediation strategies and suggestions for counsel as well as mediators. I’d like to share some mediation best practices from this informative, practical publication in this article.
What is Mediation?
Let’s start by defining mediation, and the mediator’s role in the process. “Mediation is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.” Rule 10.210, “Florida Rules for Certified & Court-Appointed Mediators.” A mediator is called upon to “encourage the participants to conduct themselves in a collaborative, non-coercive, and non-adversarial manner.” Rule 10.410, “Florida Rules for Certified & Court-Appointed Mediators.”
During the mediation conference, litigators sometimes have a difficult time stepping out of their more “natural” roles as zealous advocates. However, “[m]ediation advocacy is the skill of presenting a client’s position, needs and interests in a non-adversarial manner to persuade the other side to enter into an agreement by using active listening, empathy and problem-solving instead of argument [emphasis added].” Page 14, “Florida Mediation Best Practices Handbook (Second Edition),” hereinafter referred to as “BPH”.
Before the mediation, counsel should explain to their clients that, for the purposes of mediation, he or she will be practicing “mediation advocacy,” and that it in no way means counsel is abandoning or betraying the client’s case, positions, or interests in any manner. The problem with “chest pounding” by counsel at mediation is that it may jeopardize the prospect of success at mediation by alienating the other side and frustrating the process. Page 14, BPH. An antagonistic opening statement by counsel will almost always place the opposing party, and his or her counsel, in a defensive posture. It will often take considerable time to “rehabilitate” the listener to a state of trust and openness so vital to compromise, wasting valuable time set aside to resolve the dispute. Remember that “people will forget what you said, but people will never forget how you made them feel.”- Maya Angelou. [Excerpted from page 15, BPH.]
Preparing for Mediation
Successful mediation begins with proper preparation. Mediation is most effective when the mediator and counsel for the parties work together to prepare for mediation. Counsel for the parties should prepare a mediation statement or summary and provide it to the mediator far enough in advance of the mediation for the mediator to read it and follow up with counsel on any issues that may impact the mediation participants’ ability to resolve the dispute at mediation. The issues may be legal or factual in nature, but often will also involve the client’s unique interests, needs, circumstances, and personalities.
Armed with this information, the mediator can develop and utilize an individualized mediation strategy for each party based on the unique interests, needs, circumstances and personalities involved. Page 4, BPH. A good mediator understands the law. A great mediator understands the people. Page 4, BPH. If counsel has any concerns about exposing the weaknesses in his or her client’s case to the other side, a confidential mediation statement may be submitted for the mediator’s eyes only; or an addendum can be added to the mediation statement that is only furnished to the mediator.
Counsel should also make sure their clients understand the mediation process and the mediator’s role before the date of the mediation. Counsel should take the time to explain to the client how the mediation process works, the role of the mediator, mediation confidentiality, caucuses, and the client’s right to self-determination in advance of the mediation.
Special Considerations for Virtual and Hybrid Mediations
Presently, many mediation conferences take place virtually, usually over Zoom, or in a hybrid format in which some parties appear in person, and others appear electronically. If possible, it is preferred that all mediation participants appear in person, although there are advantages to and a need for virtual appearances at mediation. The mediator and counsel for the parties should ask all virtual mediation participants to appear with video. Building trust and establishing rapport, as well as establishing a personal relationship, with counsel and the parties are essential components of a successful mediation. Pages 6, 9 & 14, BPH.
Counsel should explain to the client who will appearing remotely the importance of using video for the mediation. It is very difficult for the mediator, as well as the other participants, to build trust and rapport with a voice and a phone number appearing in a black box, and it’s impossible to observe demeanor and body language. It is also a mediation best practice for the participant appearing remotely to be identified by a name and not a phone number. Page 7, BPH.
Furthermore, in Florida, all mediation participants are subject to mediation confidentiality, and it is nearly impossible to ascertain who may be in earshot of confidential mediation communications when a participant is appearing remotely. It is advisable to ask if anyone else is in the room with the participant appearing remotely, and if so, to address the issue appropriately. Another challenge with remote appearances is that the mediation participant may not be giving the mediation hir or her undivided attention. Clients, and sometimes insurance adjusters, will appear from work and multitask during the mediation as opposed to focusing completely on the mediation process, detracting from the prospect of reaching a settlement agreement.
For clients who are technologically challenged, the mediator may offer a practice session in advance of the mediation to make sure the client knows how to electronically access and participate in the mediation. It is useful for all virtual mediation participants to provide their names, positions, email addresses and cell phone numbers in advance of virtual mediation conferences to invite participants appearing virtually, and in the event a mediation participant is disconnected. Page 11, BPH.
The Mediation Itself
Emotional needs are of paramount importance at mediation. People have emotions and psychological studies have shown that decisions are often based more on emotions than intellect. Among the strongest emotional need is the need to be heard and taking the time to allow a party to “tell his story.” Sometimes letting the client do so, possibly in caucus, with the mediator exhibiting empathy for the client’s predicament, is a necessary part of allowing the client to move into a state of mind that is conducive to settlement. Page 7, BPH.
Emotions are often amplified in the context of litigation. For that reason, it is vital that counsel and the mediator explain to the parties at, and in advance of mediation, that mediation is an informal process at which they will reserve the ultimate authority to accept or reject a proposed agreement, thus alleviating any sense of pressure the client may feel going into mediation. It is also important that counsel and the mediator explain to the parties prior to and at the mediation that they will hear statements from the other side with which they may strongly disagree, so they are not emotionally blind-sided by such statements at mediation. Page 7, BPH.
At the mediation, once an agreement is reached, it should be reduced to writing and signed by the parties and their counsel as soon as possible, preferably before the mediation is concluded. Software programs such as Adobe and Docusign are useful in obtaining signatures remotely. Failure to obtain signatures at the mediation creates the risk of “buyer’s remorse” settling in with one or more parties and undoing the hard work and effort that went into reaching an agreement. Page 10, BPH.
To facilitate this process, counsel for the parties should prepare a draft settlement agreement prior to the mediation with blanks for key terms. Page 12, BPH. The agreement may contain optional terms such as confidentiality and non-disparagement. At times, the non-monetary terms and conditions of the settlement agreement are as important, if not more important to the parties in satisfying their emotional needs.
The Importance of Mediation Skills
Many lawyers, and even mediators, conduct mediation in a manner that is based on their experience, not on learned and practiced skills and techniques to resolve disputes. At its worst, the role of the mediator is reduced to that of a messenger, simply carrying offers and counteroffers back and forth. Many mediation conferences proceeded along those lines during the advent of mediation in Florida in the 1980s. Since then, numerous useful and practical resources have become available educating mediators and lawyers alike in the art of mediation. Given the percentage of cases that settle at mediation, and the importance of the mediation process, it behooves not only mediators, but attorneys, to educate themselves on mediation best practices. Page 12, BPH.
In modern civil law practice, counsel should consider the development of his or her mediation skills as important as staying abreast of substantive changes in the law. For it is only by counsel and the mediator working together that the atmosphere most conducive to settlement may be created, the needs of the parties satisfied, and creativity interjected into forming a mediated settlement agreement.
About John McCorvey, Jr.
John H. McCorvey, Jr. is a Florida Supreme Court Certified Circuit Civil Mediator and an accomplished litigation attorney with an extensive background in commercial and real estate litigation, including an emphasis on creditors’ rights.