Re: Learning from Mediation Experiences

A Mediator’s greatest lessons are often gleaned from working with our litigation friends at the mediation table.  The proverbial “they” tell us that one of the best ways to learn is to do, then analyze before we do it again.

You often represent clients in mediation; how often do you take the time to learn from what you did in mediation?   We who sit in the “neutral’s chair” need to frequently reflect on what we do, too – what worked, what did not work and why? 

So, allow me to draw from my mediator’s perspective to stimulate the analysis. This first installment will look at opening remarks made in joint session.  Future installments will help develop a dialogue among us so that we can learn from each other’s successes and horror stories.

The “Opening Statement” – A Chance to Educate or to Alienate

As counsel you are trained to advocate on your client’s behalf.  Often, litigators define advocacy as articulating their client’s legal position, hammering home the strengths, downplaying the weaknesses, and aggressively pursuing the remedy/defense.  Mediation, however, is your chance to educate – to persuade “the other side”, for while there is no jury present in the mediation room your “jury” is sitting on the other side of the mediation table.

Let’s take a step to the side (mediators never want anyone to go backward) for a moment: why are we here at mediation?  Is this not your opportunity – perhaps your last best chance – to find a solution working with your clients, the other counsel and their clients, and the mediator? 

Sure, you need to show that you have done your homework – you are ready, willing and we all know quite capable of going to trial.  Could you not show your readiness through effective analysis?    

“Here is how we view the facts – those that support us, those that might hurt us”; “This is our understanding of the controlling law”; “Here’s what we expect our expert will say”; “We have calculated damages this way”; “We recognize that we have risks if the case goes to trial and that the risks flow both ways”; “We are here today to work with you to find a solution”…. 

What do you lose if you approach your opening remarks as a chance to educate rather than alienate?  Persuade them by exchanging your litigator’s saber for the eloquence of the negotiator.  In the spirit of this election year, leave the rhetoric to the politicians.  Cast yourself (and your client) as the problem solver in the opening act of this play.

Remember: educate don’t alienate!

I welcome your comments.  I plan to ultimately post these periodic thoughts on my website (as soon as I can figure out how to set it up).  If you would like to receive these by email, drop me an “e” at dobbins@appropriatedisputeresolution.com, and I will put you on the developing list.

Thanks for listening,

Robert N. Dobbins