What makes mediation successful? To answer this, it is important
to consider the roles and relationships between a lawyer, their
client, and the mediator throughout the mediation process.
Many of us who are attorneys can recall our law school years
being focused primarily on developing strong advocacy and trial
skills, with little to no emphasis placed on developing negotiation
skills to reach settlement. Litigators still rightly pride
themselves on their trial and advocacy skills; it is this ability
and willingness of an attorney to effectively try their case that
creates the opportunity to reach more favorable pre-trial
settlements. However, the primary focus of law practice is not
trial but rather the preparation, negotiation, and settlement of
cases, as less than three percent of cases actually go to
Mediators are experts in the complex process of negotiation and
settlement of disputes, skilled facilitators who orchestrate
mediations like efficient business meetings. They create dynamic,
structured, and respectful climates, and encourage all parties - as
well as their counsel and/or insurers - to express themselves as
needed so as to completely grasp all aspects of the conflict,
material and human. S/he helps the parties focus on fundamental
needs and priorities, seeking out and encouraging common ground
toward the achievement of satisfactory settlement.
Effective mediators go beyond simple facilitation of the
process, exploring the parties' positions, raising questions
regarding these positions, conducting reality testing, and focusing
the participants on the potential strengths and weaknesses of their
case, preferably in a non-threatening and confidential manner.
Capable mediators give honest feedback, cutting through posturing
and argumentativeness to help parties get down to the business of
resolution. Mediators help the parties develop an agenda, identify
key interests, and create a realistic action plan.
An attorney's role in the mediation process is both as advocate
and advisor to their client. It is the attorney who has prepared,
investigated, discovered, and presented the case for the client.
S/he advises the client when and if mediation is appropriate -
whether at the beginning, before suit is filed - or during (or
after) the discovery process is completed. In most, but not all
cases, the attorney has engaged in a negotiation process to attempt
settlement before formal mediation is commenced. It is the lawyer's
role to explain to their client the nature of the process and what
to expect during mediation. Further, the lawyer assists the client
in making an informed choice of the mediator based upon the type of
case, as well as the background and experience of the mediator.
Attorneys convey the benefits of mediation to their clients and
prepare them so as to take full advantage of what mediation offers.
In that regard, attorneys should determine directly from the
mediator the process they employ, and should describe this process
to the client. For example, counsel should review the expected
initial joint session and the likely private caucuses thereafter.
It is also important to review who will talk and when, who will
take the lead role (if applicable), and how that may change as the
The attorney advises the client on the substantive law relevant
to the case and to the greatest extent possible, anticipates the
arguments that the other side is likely to make at the session. A
client's level of trust in their lawyer can be badly damaged if the
client learns of potential risks for the first time at a mediation,
such as that there is substantial risk of summary judgment before
trial, or that the forecasted legal fees will be more than
previously anticipated. The mediator will likely be discussing
these issues and relevant risks in private caucuses, and the client
is likely to hear similar points from the opponent during the
course of the mediation. An attorney and well-prepared client are
more likely to be convincing that their position is serious and
reasoned, as opposed to mere posturing. These perceptions are often
translated back to the opposing party through the mediator.
The client should also have the benefit of their lawyer's
opinion of likely outcomes at trial and/or valuation of the case
prior to the mediation. This enables the client to begin
considering a range of acceptable outcomes as part of the process.
For example, in a personal injury case the lawyer may advise the
party of possible outcomes regarding the issue of liability, as
well as reasonable and realistic ranges of a monetary judgment. The
client should be strongly encouraged to come to the mediation with
an open mind, avoiding bottom line positions.
It is important that clients understand the confidentiality of
the mediation process, both under the terms of the written
mediation agreement in effect, and by applicable statutes or laws,
such as in Massachusetts, MGL c. 233, s.23c. The client should be
informed how this confidentiality applies to both the initial joint
session and, importantly, how the private discussions or caucuses
with the mediator are themselves confidential. Confidentiality
creates the foundation of the mediation process and allows parties
and their counsel to speak openly at the session about their case
and legitimate needs. Confidentiality allows the parties to make
reasonable demands and offers with communications being protected
from disclosure at trial should the matter not resolve. The more
that a mediator can learn - in confidence - about the fundamental
needs of the parties, the better they are able to foster a
resolution that best satisfies everyone involved.
Principally, a mediation is for and about the parties. It is the
client's case and they ultimately decide whether to accept
settlement or not, after considering the advice of their counsel.
Most parties who proceed to mediation seek to resolve their case at
that session so as to avoid the continued anxiety, time, and
expense of further litigation and the uncertainty involved in going
to trial. Many parties feel that mediation is equivalent to their
day in court, an opportunity at long last to express their
arguments, perspectives, and feelings to both the opponent and
their expert and impartial mediator.
Parties come to mediation with differing levels of experience,
both as to litigation in general and the mediation process
specifically. Some clients have never participated in a mediation.
Others, such as insurers, may have significant experience in both
litigation and the mediation process. Mediators assess these
varying levels of experience and ensure that all parties equally
understand the neutral's role and the mediation procedures to be
employed. At the opening session the mediator should clearly set
forth the procedures and background rules, explain the mediator's
role and impartiality, and review mediation process
It is not uncommon for parties to come to mediation with intense
emotions, anger dating back to the underlying event giving rise to
the claim, or with frustration emerging from the claims and
litigation process. These emotions need to be expressed before an
aggrieved party can consider resolution.
Some attorneys limit their client's active engagement during the
course of the mediation session. While in some cases this may be
advisable (i.e. where the client has a tendency to speak about
their case in a damaging manner, has excessive anger, and/or
otherwise would disrupt the mediation process), counsel should
nevertheless expect that a mediator will seek to engage the client
in discussion, at least in private caucuses, to assess their views,
emotions, needs, and priorities. It is important to afford a
mediator this opportunity with the client to directly establish
confidence, impartiality, and trust. A lawyer should consider
advising the mediator in advance of the session of any client
issues, such as intense emotions or unrealistic expectations; most
mediators are happy to speak with counsel prior to the mediation
session in this regard. Attorneys should consider the advantages of
direct client participation as they advise as to their clients'
level of involvement.
Attorneys understandably tend to make strong opening statements
at mediation. Persuasive opening statements have the advantage of
impressing the strength of their arguments, belief in their case,
and preparedness to proceed to trial if mediation is not
successful. Many clients expect strong advocacy from their attorney
at mediation, however should be educated that resolution is more
often achieved when adopting a more collaborative approach.
Mediation is not a trial, and remarks made in joint session should
not be inflammatory, belligerent, or personally offensive to the
opponents or their representatives. Such statements often widen the
rifts that exist between disputants. In such instances conciliators
expend precious time during the session, in effect rehabilitating
the offended party to a point where compromise and collaboration on
their part is possible. At the very least, counsel should consider
expressing good faith intentions during the joint session, and that
it is their desire to avoid, if possible, further litigation and
trial. Such representation often enhances negotiation outcomes.
Attorneys can face challenging clients with unrealistic
expectations regarding their likelihood of success at trial and/or
expected verdict ranges, even when duly counseled. In such cases,
the mediation process allows clients a first-hand glimpse into the
strengths of the opponent's case and gives a preview of how the
evidence could play out at trial. The mediator guides parties
through reality testing and risk analysis, with settlement often
presenting more attractively than other alternatives. Mediators ask
hard questions to all sides in the dispute. A practiced mediator,
after having established rapport and having demonstrated themselves
as being both impartial and equitable, can speak in private
caucuses about the strengths and potential weaknesses of the case.
Mediators must understand the thoughts and expectations of all
parties, and rationally discuss the risks involved in proceeding to
trial, existing judge or jury trends, the time and expense of
further litigation, and the anxiety and frustration which too often
accompany that path.
At times, the attorney has unrealistic expectations for their
client's case. Being sure to respect and foster the important
attorney/client relationship, a mediator may need to engage counsel
similarly about their thoughts and expectations, providing them
with a different perspective on potential risks and nuances of a
Some attorneys are uncomfortable continuing to stress weaknesses
in their case to the client or insurer, anticipating a negative
response. In such cases it can be very powerful for the parties to
hear directly from an unbiased mediator the shortcomings of the
case so they can consider a more realistic evaluation.
This is why it is critical for all parties, as well as insurers
with needed settlement authority, to attend the mediation. Even
insurer participation by telephone is a poor second to actual
mediation attendance. In such circumstances, the mediator's ability
to speak to the insurer is limited and, too often, entirely
restricted; to make the most of the process, the attorney should
have his insurance client attend the session and work with the
Finally, participants are often anxious to depart the session
when settlement is reached. They do not wish to remain for the
processing of a signed settlement agreement, preferring to prepare
and sign such an agreement in the following days. However, most
mediators know of cases where the agreed upon settlement falls
though, whether a party changes their mind or a misunderstanding
arises as to previously agreed-upon terms. At the very least, there
is the need for a minimal, written, signed, and legally binding
settlement document at the end of every successful mediation. The
attorney, the client, and the mediator have all worked hard and
must ensure that the settlement is binding. It is critical to
thoroughly sculpt the terms of the mediation settlement agreement
and/or further releases while all parties are immediately
We hope all parties better understand the multifaceted roles and
relationships that come into play during the mediation process.
Dispute Resolution methods provide effective alternatives to the
time, expense, frustration, and uncertainty of ongoing