Success in Mediation

Based on a 20-year track record in ADR and litigation, and insights gleaned in helping clients resolve disputes worth billions of dollars, my emphatic advice to those involved in mediation is to stop doing what comes naturally. Following are four strategies that run counter to much conventional wisdom in the dispute resolution world. They may not be traditional, but properly employed, they work.

1. Let the Other Side Pick The Mediator

Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time-consuming, and adversarial. There are some superb mediators with reputations for effectiveness that are well-deserved, and in-house or outside counsel may be familiar with other talented mediators who are less well known. If the other side will agree to one of these individuals, you are off to a good start. But often, due to skepticism, outright distrust, or for some other reason, the other side will not agree to someone you propose.

In that case, let the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, telegraphs confidence, and introduces you to new mediators you actually might like.

Have your opponent propose two or three names. This allows you to eliminate candidates who have a meaningful conflict or are otherwise unsuitable. But don't reject someone just because the other side views him or her favorably. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. Your opponent will have a harder time resisting or discounting the mediator when he or she questions their arguments or pushes them to be more forthcoming in a settlement offer. And such a mediator, wanting to avoid any perception of bias, may bend over backwards to be fair to your side.

Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like. So there is little downside risk to accepting a mediator proposed by the other side. And much to be gained.

2. Don't Argue About Who Is Right

Well, not as much as you or your outside counsel want to, anyway. The goal of mediation is not to win an argument; it is to reach a favorable settlement. Some amount of substantive back-and-forth is appropriate and even useful. But scoring substantive points is at most a tactic. Don't let it hijack the process.

The natural tendency of parties in mediation is to try to convince the other side and the mediator that their position is correct and will prevail in litigation. It is of course necessary to acquaint the mediator with the substance of the dispute and generally is useful to have the parties outline for each other their views of the merits. This can be conveyed through brief position statements or copies of briefs filed in litigation. It is a good idea for party representatives to briefly state their respective positions at the outset of the mediation, both to ensure that all of the participants have heard the key opposing viewpoints, and to fulfill the psychological need of each side to have its say. And it is crucial to address substance if there is reason to believe that a decision maker on the other side has been kept in the dark about (or does not understand) the litigation risks his or her side faces.

But usually, by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating your side's arguments can harden positions, engender an antagonistic atmosphere, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot.

Similarly, the practice of some mediators to question the parties about their positions in each others' presence is usually counterproductive. It violates the stricture to “first, do no harm.” Where this technique is employed, each side will focus like a laser beam on implied critiques of the other side, while discounting challenges to its own position. Even talented mediators are unlikely to reveal significant issues the parties have overlooked, given the far greater time and resources the parties have devoted to analyzing the dispute, and the fact that they and their counsel often are experts in the subject matter involved.

Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over
substance later if the mediation fails.

3. Leave the Litigators at Home

Traditionally, litigators are tasked with both litigating a case and settling it. This generally occurs by default.

Often, it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation. Just as generals wage war and diplomats negotiate peace, the litigators continue to focus their efforts on the adversary process and separate settlement counsel (from the same or a different firm) spearhead negotiation or mediation efforts. Although there may be some additional expense in getting another lawyer up to speed, the benefits of this dual-track approach can far outweigh the costs:

• Settlement counsel approach mediation with a clean slate, untainted by the adversarial atmosphere and even animosity that litigation creates. Once mediation is under way, settlement counsel can stay above the fray of litigation.
• Litigation and settlement require different mindsets. Having one person spearhead both may undercut his or her full engagement in either. Not everyone can switch gears so quickly.
• Settlement windows tend to open when litigation is at its most intense. Cases do often settle on the courthouse steps. Separating litigation and settlement functions allows litigators to charge ahead, maintaining pressure on the other side at crucial moments and ensuring that time and effort are not diverted from important litigation tasks, while settlement counsel can devote total effort to the mediation or other settlement process.
• Although many litigators are great at settlement, litigation and settlement are specialized skills, call on different abilities and personal qualities, and involve a different mindset. In-house counsel should spend at least as much time and effort selecting settlement counsel as they do selecting litigation counsel.

4. Deal with Hard Issues Last

I'm always amazed when a participant in mediation ' sometimes even the mediator ' says, “Let's get all the issues out on the table right up front.” If the goal is to create as many impediments to settlement as possible, that is just the right approach. If the goal is to settle, it is generally far better to focus on a key issue ' usually money ' first, and leave the other, sometimes harder, issues for later.

From both a psychological and a process standpoint, if the parties have to juggle multiple hard issues all at the same time, the chances of a deal are remote. But if they can focus on a key term, it is easier to reach an agreement on that, and to use it as a foundation on which to build a comprehensive settlement. Once there is agreement on the key term, the parties will tend to feel that there is a deal and that the remaining terms will be worked out in due course. This approach creates momentum rather than impediments.

Indeed, it is often advantageous to leave key issues, or at least their final contours, to be worked out in the process of drafting a written agreement. Deals often fall apart over key substantive issues, but they generally don't fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.

Conclusion

These are some of the counterintuitive strategies that I have found useful in representing clients in innumerable mediations and other settlement efforts over the past two decades. Every dispute is unique, of course, and it is important that those involved in mediation tailor their approach to the particular dispute in question. Perhaps the most important advice for achieving success in mediation is to be creative and innovative and to adapt and readjust as the negotiation proceeds. Mediation and negotiation are fluid processes, and sometimes they benefit from being stirred up a bit.

If your company or organization finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom. Most lawsuits settle before judgment, and in-house counsel increasingly are turning to mediation ' negotiation assisted by a third-party facilitator ' to resolve their clients' disputes. They hope mediation will be faster and cheaper than litigation, and yield a better result.

But the potential benefits of mediation often are undermined because the participants enter the process with the very litigation-oriented, adversarial mindset they meant to leave behind. They focus on winning the argument rather than getting to yes. They try to game the system, glare across the table, argue about who is right, and just generally pour time and resources into activities that undermine the goal of settlement.

In-house counsel contemplating or involved in mediation should take a step back and consider whether the standard ways of doing things really serve their or their clients' needs. Do they promote your dispute resolution goals? Surprisingly often, the answer is no.

Based on a 20-year track record in ADR and litigation, and insights gleaned in helping clients resolve disputes worth billions of dollars, my emphatic advice to those involved in mediation is to stop doing what comes naturally. Following are four strategies that run counter to much conventional wisdom in the dispute resolution world. They may not be traditional, but properly employed, they work.

1. Let the Other Side Pick The Mediator

Mediation should be speedy, economical, and conciliatory. But parties often kick things off with a mediator-selection process that is complex, expensive, time-consuming, and adversarial. There are some superb mediators with reputations for effectiveness that are well-deserved, and in-house or outside counsel may be familiar with other talented mediators who are less well known. If the other side will agree to one of these individuals, you are off to a good start. But often, due to skepticism, outright distrust, or for some other reason, the other side will not agree to someone you propose.

In that case, let the other side pick the mediator. This engenders cooperation, generates good will, speeds up the process, holds down costs, telegraphs confidence, and introduces you to new mediators you actually might like.

Have your opponent propose two or three names. This allows you to eliminate candidates who have a meaningful conflict or are otherwise unsuitable. But don't reject someone just because the other side views him or her favorably. That can be an advantage. Such a mediator will have more credibility with your opponent than someone who is viewed as completely neutral or as tilting in your favor. Your opponent will have a harder time resisting or discounting the mediator when he or she questions their arguments or pushes them to be more forthcoming in a settlement offer. And such a mediator, wanting to avoid any perception of bias, may bend over backwards to be fair to your side.

Remember that a mediator is not a decision maker and cannot force you to accept a settlement you do not like. So there is little downside risk to accepting a mediator proposed by the other side. And much to be gained.

2. Don't Argue About Who Is Right

Well, not as much as you or your outside counsel want to, anyway. The goal of mediation is not to win an argument; it is to reach a favorable settlement. Some amount of substantive back-and-forth is appropriate and even useful. But scoring substantive points is at most a tactic. Don't let it hijack the process.

The natural tendency of parties in mediation is to try to convince the other side and the mediator that their position is correct and will prevail in litigation. It is of course necessary to acquaint the mediator with the substance of the dispute and generally is useful to have the parties outline for each other their views of the merits. This can be conveyed through brief position statements or copies of briefs filed in litigation. It is a good idea for party representatives to briefly state their respective positions at the outset of the mediation, both to ensure that all of the participants have heard the key opposing viewpoints, and to fulfill the psychological need of each side to have its say. And it is crucial to address substance if there is reason to believe that a decision maker on the other side has been kept in the dark about (or does not understand) the litigation risks his or her side faces.

But usually, by the time mediation occurs, the parties are quite familiar with the factual and legal issues and have had ample opportunity to assess the case. An excessive focus on vindicating your side's arguments can harden positions, engender an antagonistic atmosphere, and divert attention from the goal of settlement. And it is expensive and time-consuming to boot.

Similarly, the practice of some mediators to question the parties about their positions in each others' presence is usually counterproductive. It violates the stricture to “first, do no harm.” Where this technique is employed, each side will focus like a laser beam on implied critiques of the other side, while discounting challenges to its own position. Even talented mediators are unlikely to reveal significant issues the parties have overlooked, given the far greater time and resources the parties have devoted to analyzing the dispute, and the fact that they and their counsel often are experts in the subject matter involved.

Get to a negotiation over dollars or the other key settlement terms as quickly as possible. There will be plenty of time to argue over
substance later if the mediation fails.

3. Leave the Litigators at Home

Traditionally, litigators are tasked with both litigating a case and settling it. This generally occurs by default.

Often, it is more effective to create a separate settlement or mediation track led by a lawyer who is not the public face of the litigation. Just as generals wage war and diplomats negotiate peace, the litigators continue to focus their efforts on the adversary process and separate settlement counsel (from the same or a different firm) spearhead negotiation or mediation efforts. Although there may be some additional expense in getting another lawyer up to speed, the benefits of this dual-track approach can far outweigh the costs:

• Settlement counsel approach mediation with a clean slate, untainted by the adversarial atmosphere and even animosity that litigation creates. Once mediation is under way, settlement counsel can stay above the fray of litigation.
• Litigation and settlement require different mindsets. Having one person spearhead both may undercut his or her full engagement in either. Not everyone can switch gears so quickly.
• Settlement windows tend to open when litigation is at its most intense. Cases do often settle on the courthouse steps. Separating litigation and settlement functions allows litigators to charge ahead, maintaining pressure on the other side at crucial moments and ensuring that time and effort are not diverted from important litigation tasks, while settlement counsel can devote total effort to the mediation or other settlement process.
• Although many litigators are great at settlement, litigation and settlement are specialized skills, call on different abilities and personal qualities, and involve a different mindset. In-house counsel should spend at least as much time and effort selecting settlement counsel as they do selecting litigation counsel.

4. Deal with Hard Issues Last

I'm always amazed when a participant in mediation ' sometimes even the mediator ' says, “Let's get all the issues out on the table right up front.” If the goal is to create as many impediments to settlement as possible, that is just the right approach. If the goal is to settle, it is generally far better to focus on a key issue ' usually money ' first, and leave the other, sometimes harder, issues for later.

From both a psychological and a process standpoint, if the parties have to juggle multiple hard issues all at the same time, the chances of a deal are remote. But if they can focus on a key term, it is easier to reach an agreement on that, and to use it as a foundation on which to build a comprehensive settlement. Once there is agreement on the key term, the parties will tend to feel that there is a deal and that the remaining terms will be worked out in due course. This approach creates momentum rather than impediments.

Indeed, it is often advantageous to leave key issues, or at least their final contours, to be worked out in the process of drafting a written agreement. Deals often fall apart over key substantive issues, but they generally don't fall apart over drafting issues. So consider leaving hard issues until the end, and call them drafting issues. A rose by another name might actually have fewer thorns.

Conclusion

These are some of the counterintuitive strategies that I have found useful in representing clients in innumerable mediations and other settlement efforts over the past two decades. Every dispute is unique, of course, and it is important that those involved in mediation tailor their approach to the particular dispute in question. Perhaps the most important advice for achieving success in mediation is to be creative and innovative and to adapt and readjust as the negotiation proceeds. Mediation and negotiation are fluid processes, and sometimes they benefit from being stirred up a bit.