15 Jun How To Get The Most Out Of Your Roster Mediator
When you hire a roster mediator or have a roster mediator appointed, there is significant variability in relation to the mediator’s knowledge, experience and training. Roster mediators may be new to the market or they may be veterans in the marketplace. Can the mediator get the job done and close the deal? What do you do? How does your approach to mediation change?
Here are some tips to get the most out of your roster mediator:
1. DO YOUR HOMEWORK
There are undoubtedly more and less capable roster mediators. Do your due diligence.
- Speak to your colleagues, either within your firm, in your practice area or through professional associations.
- Review the mediator’s website.
- Find out if the mediator has written any articles and review them.
- Call the mediator and ask a few pointed questions and listen carefully for the answers; you will undoubtedly gain an appreciation for their communication skills, personality and the like.
2. DESIGN YOUR MEDIATION MEMORANDUM WITH THE ROSTER MEDIATOR IN MIND
A roster mediator, depending upon his or her background, training, education and experience, may need additional or other information as compared to counsel. You may have to provide the mediator with a description of the law, copies of statutes, regulations or key judicial decisions. You may also have to provide the mediator with a more detailed factual discussion so as to equip the mediator with the tools so that he or she can be part of the solution rather than part of the problem.
3. LIMIT THE SIZE OF THE MEDIATION MEMORANDUM
Best practice would be to keep the narrative portion of the memorandum fairly brief and focused. Identify points of agreement, which will constitute the beginnings of a settlement agreement, and identify points of serious disagreement. Suggest ways and means to go about bridging those points of serious disagreement. Generally speaking, less is more.
4. LIMIT THE LENGTH OF THE MEDIATOR’S OPENING REMARKS
Counsel should perform the mediator’s function and educate their client in advance of the mediation as to the process generally and what they can expect to hear and to happen at mediation. Consider asking the mediator to attend a few minutes in advance of the official start time of the mediation so that they can explain whatever they feel compelled to explain to your client before the opening session begins.
5. LIMIT THE LENGTH OF OPENING STATEMENTS BY COUNSEL
Focus on matters or issues where there is agreement [building bridges] and focus on matters where there is disagreement which will realistically hamper your ability to settle the matter.
6. DON’T READ OR REGURGITATE YOUR BRIEF AS AN OPENING STATEMENT
If at all possible, you should say something new in your opening that is not in the brief. Use your opening to achieve clarity in relation to the content of your message and points of emphasis. Use your opening to humanize the process.
7. GIVE THE MEDIATOR WHAT THEY NEED TO UNDERSTAND YOUR / OTHER CLIENT’S POSITION
Tom Cruise, in Jerry Maguire, said, “Help me, help you”. If there is a critical case on point, give it to the mediator or give him or her a summary of the case law. Identify the important moving parts of the case which will drive the negotiations. Educate the mediator.
8. CONSIDER BRINGING THE ROSTER MEDIATOR INTO THE “INNER CIRCLE”
The issue is really one of trust and confidence. For example, monetary movement is one of the clearest and most transparent forms of communication at mediation. Another example may arise where your client, private or institutional, is not listening to you or taking your advice. Some mediators can be very helpful in gently probing this area and determining whether they can help you bring your client on side.
9. GOOD IDEAS ARE NOT WITHIN THE EXCLUSIVE JURISDICTION OF THE ROSTER MEDIATOR
The roster mediator may be the custodian of the process for the day. However, they do not hold an exclusive license over good ideas. Don’t hesitate to offer your thoughts and suggestions.
10. DON’T LET THE MEDIATOR GET IN THE WAY
If you find yourself at mediation with a roster mediator who is not up to the task, use the mediator for what they can do rather than focusing on what they cannot do.
- If necessary, give the roster mediator explicit instructions on the message to be delivered and the wording to be used.
- Another option would be to ask the mediator to bring you into the caucus room of the opposing party so that your message can be delivered in a clear and unfiltered fashion.
- A further option is to suggest a meeting of just counsel and the mediator.
11. CONTINUE WITH THE ROSTER MEDIATOR UNTIL THERE IS RESOLUTION
On some days, the matter cannot be settled on the day of the mediation. Use the roster mediator to:
- Understand what may be lacking in your room or the other room and what can be done to address this deficiency going forward.
- Follow up with you or opposing counsel or both in the coming days, weeks and months.
12. DON’T “MAIL IT IN”
There are many occasions when there are no realistic prospects to resolve the matter at mediation. However, mediation does provide an opportunity for you to have the ear of the opposing decision-maker. You:
- May want to explain your perception of the weaknesses in their case or the strengths of your case.
- May want to explain why you cannot resolve the matter. You may want to ask questions of the opposing party, whether to gain information to help you resolve the matter going forward or to gain a better appreciation for the opposing party as a potential witness.
- May want to ask for documentation to address gaps in your understanding of the matter which may lead to settlement down the road.
- Can certainly use the opportunity to better gauge the likability of the opposing party and the competence of their counsel.
- Should leave the mediation with more information and a better understanding of the matter and the impediments to resolution.
13. ROSTER MEDIATION ECONOMICS
Many clients, institutional or otherwise, wish to engage roster mediators as a cost-saving measure. This is a legitimate concern and a modern-day reality. However, you have every right to expect your roster mediator to be engaged, energetic and committed to the process.
Mediation is not a sporting event. Batting averages may be the measurement tool which allows batters to enter the Hall of Fame. Settlement percentages for mediators may be illusory. Evaluate your mediator based on their commitment to keep people working away at issues and to keep people engaged in the discussion. The mediator should be the last person to throw in the towel.
If you’d like further tips, click to read the full article.
ABOUT THE AUTHOR
Jonathan T. Cooper of Cooper Mediation Inc. is the taller, younger and non-bow-tied mediator with Cooper Mediation Inc. He mediates primarily, but not exclusively, in the area of personal injury and insurance.
Jon can be reached at email@example.com or at (647) 993-2667. To schedule a mediation with Jon, visit: https://coopermediation.ca/jonathans-online-calendar/.