I have witnessed several bizarre and unusual approaches and even some attempts to intimidate and bully me in the last 18 months. Fortunately, I am a strong character and can manage most situations but it does not mean that they don’t affect me or indeed the process. I am a big believer in mediation after litigating for 12 years and find that I have to spend significant time educating on the process or indeed having to undo previous ‘bad’ mediation experiences that some have had.
I have been thinking about a few top tips that I could give to representatives in advance of a mediation which will help them approach mediation in the best way possible for their clients. After all it is the clients’ best interests that are paramount and ultimately it is their lives that are affected by the outcome of a mediation or indeed litigation. Many of the below points come as second nature to most sensible representatives but unfortunately it is not the case for all. If everyone is to benefit from the mediation process, whether a settlement is ultimately reached or not, then engaging in the process in the correct way is paramount. Negotiation is a skill and comes in many forms.
- Trust in the process. It works and can work really well if approached with the right attitude.
- Enter into mediation with the genuine spirit to see if a resolution can be reached. A resolution that your clients can live with, free from the inherent risks and stress of litigation.
- Don’t start the day (at all, but certainly not in front of your client) by undermining the process in any way and telling the mediator that you are only there to tick a box before trial. Prepare your clients for a process that works, that is a stand-alone process to bring a conclusion to matters and is not a tick box exercise!
- Let the mediator speak to your clients, build a rapport with them and allow the clients to trust the mediator. This is crucial for your clients. Remember the neutral role of the mediator. Remember it is your clients’ dispute and ultimately affects their lives. Demanding that they are your clients and that the mediator can only address them with your permission is not only unhelpful but seriously hinders the potential for settlement.
- Don’t get emotionally invested. You are there to represent their best interests which includes helping them through their emotions but you are the professional, you are advising free from emotion, allowing them to rationalise and apply logic. An emotional, non-measured reaction from their trusted advisor is only going to increase their emotions and stop everyone from truly listening to what is being said.
- Come to the mediation open minded, do not try and dictate the process or have a fixed view on what should happen. Be flexible. Every mediation is different and unique to that dispute, the parties, the personalities and the circumstances.
- Remember the mediator is not simply a messenger. The mediator is an experienced professional, usually with significant expertise in the sector as well as in the process. The mediator will guide and coach on negotiation. It is part of their role. Simply demanding the mediator listens to you and then does as he or she is told is not helpful.
- Be creative, think outside the box, that is the beauty of mediation. Be prepared but don’t be dogmatic in your approach in so far as trying to pre-empt what will happen to the extent that this cloud judgment meaning that you cannot consider changes of structure or curve balls which may ultimately benefit your client.
- Prepare your client beforehand – consider the risks of your case with them. Consider the costs of litigation with them as well as the adverse costs risks.
- Come with your costs information up to date so clients can make informed decisions.
- Listen to the mediator. Actively listen, carefully, to what is being said. Take on board the messages and the guidance before reacting. If you react immediately upon hearing the first sentence, then your client follows suit and no one is continuing to listen to what is being said. The mediator knows how to deliver messages and guide parties in their response. Listen to what they are saying. It also avoids any misunderstanding of messages later!
- Use a position statement for the right reasons, provide relevant information for the mediator, set the right tone, clear up misunderstandings and perhaps explain settlement parameters that are realistic. Simply shouting your case and stating what your client “wants” can render the position statement useless. It is a powerful tool. Use it to your benefit!
- The RARE few representatives that use old-school, bullying tactics to force a mediation a particular way, don’t bother, it doesn’t work. Bullying and intimidating behaviour is not acceptable in other situations and it is not acceptable in a mediation environment. Confidentiality and privacy does not give free reign to behave unprofessionally. Everyone is there to do a job and behave professionally. If your client attempts this approach or even attempts to intimidate the mediator, explain to them that it is not an acceptable approach. Support the process and the mediator in the same way you would not accept that behaviour in any other professional environment. The mediator is used to dealing with extreme emotions and can work with these however intimidating behaviour is unacceptable.
