Alternative Dispute Resolution
concerned about the Mediator’s influence, then you do not have confidence that your clients trust and respect you and in the end will accept your advice. I think it is a huge mistake to exclude your client from the Mediation. Now, this doesn’t mean that there are not times when the Mediator will want to discuss certain issues with the attorneys out of the presence of the clients. Tis often happens and should be encouraged when necessary and appropriate. But, for the most part, your clients should and must be a full participant in the exercise. Frankly, it protects you as well as the client in the end.
Q. Should lunch be served at the Mediation?
A. Absolutely. I cannot tell you how many Mediations resolve shortly after lunch. It’s not so different than a jury. Tink about how many times a jury verdict comes in shortly after lunch. If you try to mediate through the lunch period, people tend to get cranky, frustrated and difficult. Tis is not so surprising. Blood sugar levels drop and energy is dissipated during a fast. If you begin a Mediation at 9:00 or 10:00 and you are still going by noon or 1:00, ask the Mediator to order in lunch if the session is at his or her office or to request that the host law firm do so.
Q. How should we terminate a Mediation session that is not going to be successful?
A. First of all, leave that determination to the Mediator. Tere are numerous Mediations which seem to be on their way to disaster that re-correct and resolve the dispute. If the Mediator reaches the conclusion that the case cannot settle that day, agree cordially to end the session with the understanding that the Mediator will remain involved, remain in communication with the parties and continue a dialogue. Tis often either results in the case resolving over the phone or in a subsequent Mediation session. Never, never get up, storm out and leave in a huff. Tis is juvenile, uncivilized and does nothing but slam the door to further negotiations. Tere is never, ever any benefit in cutting the lines of communication.
Q. Any final suggestions or advice?
A. Keep in mind that the golden rule applies at Mediations: “He who has the gold rules.” Unless and until you take the case to trial you have no “right” to anything from the defendant(s). No matter how strong you think your case may be, your goal at Mediation is to persuade the defendants and, most importantly, their insurers to volunteer to part
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