09 Jun 7 Big Mistakes Lawyers Make in Mediation
Everybody makes mistakes. That’s why they put erasers on pencils. Of course, when we make mistakes, we hope they’re small ones that no one will notice or that won’t take much time or money to fix.
Unfortunately, mistakes in mediation can be costly, waste the participants’ precious time and cause further harm to relationships that may be strained to begin with. Striving for perfection may be unrealistic. In this blog post, I’ll outline seven big mistakes lawyers make in mediation so that you can try to avoid them.
1. Plan? What Plan?
If you come into mediation thinking that you’re going to roll the dice and see if you can resolve your matter, you’ll probably come up with snake eyes. Every lawyer should have a negotiating plan and strategy that is well-thought out before attending the mediation. Circumstances on the day may call for some flexibility and finesse, but if you enter without a road map to an acceptable resolution you’ll get lost.
2. Client Prep.
This may be your umpteenth mediation and you are well-versed and well prepared for what is likely ahead. But is your client? Inadequate client preparation and failing to manage their expectations can leave you at odds during discussions or prompt emotional responses that derail negotiations. These can and should be anticipated with adequate preparation.
3. Timing Is Everything.
Setting a date for mediation is not as simple as closing your eyes and randomly pointing to a spot on the calendar. You should aim for a time when you know the vast majority of the information about a case but before a significant portion of the costs of a trial have been incurred. Moreover, if mediation occurs before a crucial piece of the discovery process is completed (an examination for discovery, medical reports or evaluations, etc), it can lead to reluctance on the part of one or more decision-makers to settle.
4. Are The Decision-Makers Present?
You’re making great progress and a breakthrough looks imminent but ….. hang on while we try to get the decision-maker on the line to explain what’s happened and to get approval. If the people ultimately responsible for making key decisions or authorizing demands or offers are not present or adequately briefed, a mediation could end prematurely with no resolution and upset other parties present.
5. Have You Disclosed Everything Necessary In Advance?
Does the mediator and, more importantly, opposing counsel have your mediation brief well in advance of the mediation? Have you shared and disclosed all appropriate information to ensure all parties can make their assessments based on the same facts and information? If you’re representing the plaintiff, have you updated your damages to reflect new information that has come to light since your initial claim was made? Be sure there is no potential for an unpleasant surprise that could put a sudden halt to negotiations.
6. Tone. Tone. Tone.
You’re not at court where it’s expected that you’ll need to argue your points in front of a judge or jury and where there may be a ‘winner take all’ mentality. At mediation, we look for a mutually agreeable resolution. If you come across as angry or hostile, you won’t do yourself (or your client) any favours if you’re hoping to convince the opposing party to work with you.
7. Show Me The Money, But Show Me Empathy and Respect.
Numbers are important. Your client may have a bottom line. But settlements are not all about dollar figures. There are creative ways to put settlement packages together that offer valuable services to a claimant that go beyond hard numbers. Moreover, showing empathy to the person on the other side of the table can sometimes be worth more to them than money alone. Acknowledging their pain, suffering and stress can go a long way to letting them know you see them as human being and not just a budget line. The same applies to the defence representative who is simply trying to do their job to the best of their abilities, respecting corporate governance, rules and regulations and attempting to resolve the matter fairly and reasonably.
Whether you’re an old pro at mediation or new to the world of mediation, everyone is capable of making mistakes at the negotiating table. Hopefully these tips will help you avoid some common ones that I see. Please remember that engaging with an experienced mediator and supporting them as they facilitate discussions are great ways to reduce the risk that your mediation will go off the rails.
We’re here to help all sides put their best foot forward so everyone can walk away satisfied that a mutually agreeable settlement was reached if at all possible.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and party disputes under the Insurance Act.
Vance can be reached at firstname.lastname@example.org or (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.