No longer is mediation the new strategy on the block; however it continues to be discussed and, in some cases debunked by litigants and their counsel. One might ask, “What reasons underlie the negative reactions to mediation?” In my experience, the primary reason is the unfounded belief by litigants and even their attorneys that engaging in mediation is a sign of weakness that, when indulged, leads to a loss of control over the litigation process.
I disagree, for many reasons, but the purpose of this article is not to pontificate; rather, in view of the fact that mediation is generally mandatory for all civil federal cases filed in the Western District of New York, I write to offer practitioners a few suggestions, that if adopted, could lead not to loss of control and a display of weakness, but to resolution achieved through creative problem-solving based upon disciplined pre-mediation preparation and analysis.
Tip 1: Educate yourself about mediation and, in this regard, consider starting the process by reading “Getting to Yes,” by Roger Fisher and William L. Ury. This useful book is no more than 240 pages with the potential of training the advocate to approach problems by reconciling interests, not positions.
Tip 2: Educate the client about mediation and in this regard, consider giving a copy of “Getting to Yes” to the client. At the cost of $12, the advocate can share tried and true tips for a successful negotiation and hopefully persuade the reluctant client to become committed to the process.
Tip 3: Spend the time and prepare a comprehensive written assessment of the facts and law and share it with the client early on in the litigation process.
Tip 4: Refer back to the written assessment as often as necessary and thereby encourage the client to think about creative solutions to end litigation.
Tip 5: Prepare a written litigation budget and share it with the client, even if the client has not asked for a written budget.
Tip 6: Identify and work with the real decision makers.
Tip 7: Strongly encourage and in many cases require the real decision makers to attend the mediation in person.
Tip 8: Educate the mediator about the personalities and the interests at stake through timely submission of a confidential mediation statement.
Tip 9: Prior to the mediation, anticipate setbacks and advise the client so that when setbacks occur during the mediation, they can be used to identify interests that must be addressed in the resolution and not as reasons to end mediation efforts.
Tip 10: Plan on more than one mediation session, or in the case of a “failed” mediation, consider the benefits of a return to mediation later on during the case.
Although simply stated, implementation of these 10 tips will and should require a significant amount of analysis and hard work on the parts of the advocate and the litigant. More often than one might expect, the effort will pay off in a successful resolution and, hopefully, a very satisfied client.
Mary Jo S. Korona is a founding partner in the law firm of Leclair Korona Giordano Cole LLP. She concentrates her litigation practice in commercial matters in state and federal courts and she is a certified federal court mediator serving the U.S. District Court-Western District of New York.