Mediation is part of the law of A.D.R. or alternative dispute resolution. It’s an efficient, cost-effective, flexible, and viable alternative to the trial process. It often allows clients to resolve disputes in a less formal and costly setting than a courtroom and since court dockets are often backlogged, it can save a significant amount of time.
- Explain why mediation will work in their favor - Your client may be reticent to use mediation to reach their goals. They’re confident in their case and they believe that if they skip mediation and go to trial, the judge will see it their way. This really couldn’t be farther from the truth. If the judge’s docket also has criminal or other pressing legal matters that day, listening to a spousal dispute regarding a separation agreement and the division of marital property is the last thing they want to hear about. While your client views their issue as an important life event, the judge will likely do what’s necessary to quickly and efficiently settle the matter pursuant to state law and other guidelines.
- Mediation is not a war, it’s a collaborative effort – If the client goes into the mediation believing they must win at the expense of the other side, the mediation is less likely to be successful. Mediation is meant to be cooperative problem solving or cooperative bargaining. Cooperative bargainers identify interests and examine differences in how the parties value items. Then both bargainers work together to find a solution that satisfies their client’s interests.
- Calculate your client’s BATNA – Because the mediation process is interest-driven, you need to focus on identifying the underlying motivation for each goal. This helps your client manage expectations. If your client has something tangible that explains the possible outcomes, they can make a more informed decision.
- Alleviate client fears – Educate your client about the mediation process and explain that although it’s voluntary, it enables them to control the outcome. Give them an overview of mediation benefits and encourage them to do their own research if they’re still hesitant. Mediation affords them the opportunity to state their case and push for their interests. Compare the option of mediation to a trial where they’d have little to no control.
- Follow the O.O.C. method – Ask your client open-ended questions and let them talk. Then ask them more open-ended questions. Then ask them closed questions. This is the best way to gather as much information as possible to start identifying goals and ideal outcomes. Where is there flexibility and what positions are “non-negotiable”? Come up with your strategy for getting through a logjam and moving forward towards a resolution if it comes to that.
- Ask your client “why” questions – Understand your client’s motivations and knock down “positional walls” to gauge their interests and wants. In divorce mediation, there are often similar interests like custody and property. Each spouse has different routes and motivations for achieving those goals. Sometimes it takes help from the attorney and mediator to help budge a client and reach a resolution. If both sides walk away from a mediation session not getting everything they want, the mediation was successful.
- Find out your client’s fears – What are they afraid of? What do they want to avoid? Part of your preparation includes tailoring your arguments to the strengths of your case and downplaying your weaknesses. If your client’s afraid of an area in their case, find out what it is and prepare ahead of time. You want to go into the mediation with your best foot forward and that includes strong preparation for your strengths and weaknesses. See #10 below for preparing your weaknesses.
- Does your client want to salvage the relationship? – This can impact the final settlement and your client’s interests. If your client still wants to maintain a somewhat positive relationship with the other side, you will need to bargain for things that don’t offend or upset the other side. If your client doesn’t want to salvage the relationship, then your bargaining room widens.
- Research your mediator – Google, LinkedIn, and asking your professional contacts are excellent ways to research your mediator. Find out how that mediator operates, what they expect, and whether they are biased. You want to find someone who will give you the best chance for success.
- Anticipate counter-arguments – Run through different scenarios with your client to get their opinion and reactions to counter-arguments. Be creative and try to role play the different sides. Have these responses planned ahead of time in a way that allows you to play defense and still be able to steer the conversation back to your side. See #7 above for potential counter-arguments.
Want to learn more?
There’s a wealth of information available online, but I highly recommend Mediation Representation for practitioners or anyone curious about the mediation process. Also, JAMS, a provider of private alternative dispute resolution services, is an excellent resource.