My experience in construction and business litigation – both as an advocate and as a neutral – gives me a perspective I would like to share.
Successful mediation is hard work. It takes preparation, persistence and patience.
Preparation includes written position statements – but more. I like to confer with counsel collectively and privately before and after receiving the position statements. I encourage exchange of position statements but also invite submission of additional information for my eyes only. In appropriate situations – particularly where the issues are numerous or complex – I will encourage separate private meetings with the parties and counsel before the mediation.
I’ve found this depth of preparation does three things: (1) it saves precious time on mediation day, (2) provides a deeper understanding of the issues and (3) builds rapport and trust with the decision makers.
I always tell counsel and the parties that they “own” the mediation process. Therefore, I have no strict regimen for conducting the mediation. If the parties agree, we will begin with a joint meeting and opening statements. Although there are competing theories about the usefulness of opening statements, they can be helpful to the decision makers if properly conducted. But I have also seen mediations irrevocably doomed to failure because of ill-considered, rude or belligerent remarks in the joint meeting.
Which brings us to the subject of civility. I insist on it. Not just in a joint meeting but at all times. I expect counsel to help keep the process on a courteous and respectful path.
Confidentiality is so engrained in mediation that it is routinely assumed. However, I ask the parties and anyone they bring with them to document their agreement to confidentiality before we begin. As the mediation progresses, I strive to make certain that authority for exchanging information is clear.
Parties often get discouraged if the mediation does not progress as quickly as they anticipate. I stress that mediation takes time – sometimes longer than the time initially allotted. As long as progress is incremental or likely, I encourage the parties to stay engaged. My mantra is: “Don’t be the party that pulls the plug.”
If settlement is not achieved within the initially allotted time, I encourage the parties to set a definite time to resume or at least set some milestones for continuation. If there is no agreement to this approach, I follow up with the parties informally on a confidential basis and encourage them to keep trying.
No settlement agreement is left to chance. I always have the parties document their agreement before leaving. My practice is to ask counsel to bring a draft agreement containing the necessary basics and the terms they anticipate. Obviously, the final product will vary but getting a head start on drafting is a timesaver. More importantly, drafts remind the parties of terms they deem essential so they don’t get overlooked and become a disruptive surprise just as settlement is in sight.
I charge my hourly fee for study time and travel time between 8:00 a.m. to 6:00 p.m. Advance deposit of the estimated fee is requested. There is no cancellation fee. Expenses are passed through without mark-up.