Reflections on 25 Years of Mediating

This month marks my 25th year mediating cases. This had led me to think back on my first mediations and what I have learned since then.

I signed up as a volunteer mediator in New Hampshire in 2000, not long after ADR became mandatory for civil cases. At that point in time, the Clerk’s office would schedule three back-to-back mediations in one day, each lasting two hours. It was a strange combination of speed dating and mediating, all taking place at the courthouse.

I have mediated a lot of cases since then, and hope I have learned a few things about the mediation process. Here are some observations that might be helpful:

1. Asymmetric information is the enemy of resolution. If two sides are operating from vastly different facts or assumptions, cases don’t settle. Share your mediation summary with the other side, and, ideally, do it early on so the other side can factor new information into their case assessment. Hiding the strength of your case from the other side won’t help resolve it.

2. Ask the mediator for input. Most mediators are willing to help with clients who aren’t listening to counsel or have expectations that won’t be met by going to trial. Mediators “get it” when an attorney solicits a mediator’s thoughts on a discrete issue or questions of case valuation. Clients sometimes need and usually welcome this kind of input.

3. Timing is important. Mediating early on saves litigation expense, but can lead to vast differences in case perceptions. Mediating when dispositive motions are pending but undecided can backfire if both sides are overconfident of prevailing. When possible, time your mediation to occur at a point when both sides will be operating from the same essential facts.

4. Less is more. Mediators don’t need full deposition transcripts, expert CVs, word indexes or full copies of lengthy insurance policies or commercial contracts. Distill what you transmit to what the mediator truly needs to understand your case.

5. Let your client speak (sometimes). If your client has not been deposed or has never met the decisionmaker on the other side, and if your client presents well, consider giving them an opportunity to talk briefly in a joint session. If one of the strengths of your case is your client, don’t hide this from the other side.

6. Share court orders. If there are substantive orders on a case (e.g., motion to dismiss or summary judgment), provide copies to the mediator. Court orders usually present concise summaries of a case that mediators find useful.

7. Suspending mediations and reconvening can work. If it becomes clear that the parties are so far apart that a case will not settle, the problem is often one of timing: the need for expert disclosures or depositions, or the need for judicial ruling on a key question of evidence or law. If a mediation can be suspended and continued later on by agreement of counsel, it will often lead to resolution.

8. Confront case weaknesses. Every case has weaknesses. It is tempting to ignore these and hope no one notices. The most effective counsel address weaknesses head-on with the mediator and, when appropriate, in joint session with opposing counsel.

9. Use substantive openings strategically. Years ago, counsel made opening statements in all mediations. The current trend is to avoid them. If opening statements simply reiterate points already made in writing, they have little value, and sometimes will move the negotiation backwards. If statements are focused on responding to new information or new legal arguments, they may have a place. Either way, they should be short and respectful. (And, it never hurts to compliment opposing counsel’s work on a case or advocacy).

These suggestions don’t apply to every case, but they hopefully will help counsel and clients: (a) think about what they can do to make effective use of their time with a mediator; and (b) resolve their cases.