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.