While good mediators can work around almost any obstacle, there are a number of ways that counsel can unknowingly impede the mediation process. Here are ten mistakes to avoid:
1. Showing up without decision makers.
To maximize the chances for resolution bring decision makers to the mediation. If a client will not make a decision without his or her spouse, make sure that spouse attends. If someone has to attend by telephone, have back-up phone numbers and emphasize that you will need the ability to connect.
2. Failing to discuss settlement with your client beforehand.
The start of the mediation session is not the time to have that first hard discussion with your client about case value. Set appropriate expectations in advance.
3. Moving in the wrong direction.
If you have made a demand or offer before the mediation, don’t move backwards from it at mediation. In the exceptional situation where new information changes the case value, don’t wait until the start of the mediation to announce this.
4. Springing new information on the other side.
Particularly where you are dealing with an insurance company on the other side, understand and work with the reserving process. Putting new damages or new specials on the table at the mediation accomplishes little.
5. Withholding information that could help settle the case.
Recognize that the vast majority of cases will settle without trial. Don’t save the “good stuff” for a trial that is unlikely to occur when it could assist in obtaining a better negotiated result for your client at mediation.
6. Personally attacking the opposing party and counsel.
If you are trying to negotiate a good outcome for your client, rely on persuasion not on personal attacks.
7. Refusing to move.
The negotiation process stalls out quickly when one side refuses to move, or insists on a “better” move by the other side before putting forth another offer. Respect the role of reciprocity and keep moving.
8. Ignoring liens and third-party interests.
The mediation session is not the place to start making calls to lienholders. Make contact well before the mediation, negotiate what you can and have a good way to reach decision makers. Consider inviting large lienholders to the mediation. If Medicare is involved secure a recent conditional payment letter.
9. Failing to prepare.
Mediation can be the most important event in the life of a lawsuit. Know your file, and show up prepared with a negotiation strategy.
10. Giving up early.
Difficult cases can and do settle at mediation. A big negotiating divide or even an impasse does not mean a case cannot settle. Giving up early does not help. Be patient, work with the mediator and let the process unfold.