18 May How to Get Through the Mediation Process with Ease
The mediation process can be easy so long as everyone goes into it with the right attitude. Whether you are at mediation voluntarily or required to be there by law or due to a court order, you may as well make the most of your time. This an opportunity for you to attempt to settle a dispute. It may be the only chance you have. So you want to take it seriously. There are many things you can do make the mediation process flow better. Following these tips may also lead to a more successful mediation.
Let’s look at the mediation process in general and then some tips to make it easier for everyone.
WHAT IS THE MEDIATION PROCESS?
- Decide to go to mediation
- Agree on a mediator who has the appropriate certification for your situation
- Schedule the mediation conference
- Sign an Engagement Letter
- Arrive at the conference on time or slightly early
- All parties will be in the same room at the beginning
- The mediator will give their opening statement
- Each side will give an overview of their position
- Parties will probably go into separate rooms
- The mediator will go back and forth discussing matters with both parties until there is a settlement or someone wants to quit (referred to as “caucus”)
- Mediation ends in either a settlement, impasse, or continuance
- If there is a settlement, the agreement will be put in writing for signature. If there is a continuance, a second conference date will be scheduled.
TIPS FOR BEFORE THE DAY OF MEDIATION
TIP: Talk to your attorney (if you have one) and learn about the mediation process by doing online research to determine if mediation is right for you.
TIP: Think about what you hope to accomplish and compare that with what the other side wants. Are you firm in your position or are there areas where you can be flexible? How about the other side? What is their attitude? Both parties have to be open to change in order for mediation to be effective.
TIP: Once you have agreed to go to mediation, commit to fully participate in the process. Be willing to evaluate the strengths and weaknesses of your position. Start thinking of offers that might be acceptable to both parties. Let go of the “my way or the highway” approach because it leads to nowhere. See yourself as a collaborator.
TIP: Determine what type of case or issue you have. For example, in Florida, County cases are less than $15,000 whereas Circuit cases are more than $15,000. Family cases deal with marriage, divorce, and custody. Dependency deals with the care of minor children when there is a caregiver problem. Appellate is for appeals cases. Each state may be different and you want to make sure you have selected the right type of mediator for your circumstances.
TIP: Both sides need to agree on a mediator. The court may choose a mediator if both parties cannot agree. When dealing with mediation programs run by government agencies or small claims, the mediator may be randomly selected for you from a roster of qualified mediators. You can check on a mediator’s certification in Florida by going the Florida Supreme Court ADR website.
TIP: Normally in mediation, each side will pay half of the fees. This is something that can be negotiated as part of any settlement offers. There is no guarantee that the other side will agree to pay all the fees, so just go into it with the understanding that you are paying for half unless something changes.
TIP: All parties must attend the mediation unless agreed to beforehand and they must have full settlement authority.
TIP: Finding a date and time that works for everyone can be one of the most frustrating parts of mediation. The mediator is trying to coordinate the schedule with many different people and possibly a location too. This feels like herding cats and is a huge time suck. Provide as many dates as possible and try to be flexible. Stay in communication with the mediator and respond to date requests promptly as delay in answering can result in someone else’s schedule changing. Once you agree upon a date, do not change it unless you have really good cause such as illness or an accident.
TIP: Allow plenty of time to prepare for mediation. Take care of gathering any information you need prior to that date.
TIP: Do not schedule anything else for the day of mediation. Normally it will start in the morning and can last several hours, sometimes all day. Make sure it is on a day where you are totally free and can devote your attention to working on the dispute.
TIP: If you have any special needs or requirements, bring these up ahead of time so the mediator can accommodate you.
TIP: Expect that there may be a lot of downtimes while the mediator is in caucus with the other side. The mediator will try to spend equal amounts of time with both parties, but sometimes the mediator will find it necessary to spend more time with one. This is not the mediator playing favorites. It just may be that one side has more to say or their part of the dispute is more complicated. You may want to bring something to occupy yourself; however, this time is best spent contemplating your options.
TIPS FOR THE DAY OF MEDIATION
TIP: Try not to be late. We all get stuck in traffic or have a bad morning. If you aren’t going to be on time, let the mediator know. People are usually very understanding when someone is courteous and communicates.
TIP: Be polite no matter how angry you are. Don’t let it show to the other side. Save your venting for when you are communicating with the mediator in caucus. Mediators are well aware that the parties may be upset and absolutely want to hear how you feel. However, creating a tense environment will not help the situation. It puts everyone on the defense and that is counterproductive to making an agreement. It may also hurt your bargaining position because it often causes the other side to dig into their own position. You want to appear strong and confident in the presence of the other party, then openly express yourself to the mediator in private so they can relay your message in a productive way.
TIP: Try not to use your cell phone too much. Mediation is confidential except where required or permitted by law. It is understandable that everyone is used to being on their phone; however, it does start to make other people nervous about whether you are relaying information to an outside party. Phone calls and texting should be kept to a minimum, especially in front of the other party.
TIP: Listen to the mediators opening statement. They are required to say certain things at the beginning of mediation. Every mediator’s opening statement is slightly different. It will help you to understand the mediator’s style and for many people, it calms nerves. Even if you have been in mediation before, you may want to pay attention. Hold any questions until the mediator is done with their speech.
TIP: When giving your opening statement, be brief and focused. Many people will do what I call “kitchen sinking”, which means giving too many facts or too many extraneous details. It lessens the effectiveness of your speech. This is the time to make a very solid statement about your position. It may be the only time the other side will get to hear what you have to say directly. You want to appear professional, organized, and strong. Your opening statement should be a high-level summary of your points, not a long narrative. You will have plenty of time to go over all the details with the mediator in private. The mediator will ask you many questions to make sure they understand where you are coming from and any important information that needs to be addressed with the other side.
TIP: When the other side is making their opening statement, listen closely. Do not interrupt, do not make faces, and do not get upset. They have the same right as you to speak. The other side probably wasn’t thrilled with some of the things you said either. That’s why you are at mediation. If everyone agreed, then there would be no need. Right? So, just go into the day understanding that their position is not the same as yours and that is what we are there to work on. If it is too upsetting, then tune it out. However, if you can bear with it, listen for subtle clues that may be helpful to you or write down points you want to make when you talk to the mediator privately.
TIP: Be open and honest with the mediator in private. Tell them what is most important to you and why. Tell them what you are worried about. Anything you say to the mediator in caucus will be confidential unless you give the mediator permission to speak about it with the other side. If you don’t share your concerns with the mediator, they will not be able to address it.
TIP: Understand that the mediator is constantly listening for areas of agreement and disagreement. They are trying to figure out what the pressure points are and what things are easy to work out. Mediators adapt their strategy to the personalities of the parties. Sometimes a mediator will want to address the major issues first. Other times they will want to get agreement on the small stuff before tackling the big stuff. There is no right or wrong way. You will have many opportunities to talk with the mediator, so there is a cumulative effect of discussions.
TIP: Understand that the mediator may say some things that you don’t want to hear. They are doing the same with the other side. Disputes are rarely black and white. The mediator may play “devil’s advocate” to get you to see a weakness in your position. Instead of getting upset, be open to hearing it because it may give you insight into how a third-party such as a judge or jury may think. You can’t go into mediation thinking that you are going to win on every single point. That’s not realistic. Most often both sides have good points, just different perspectives. Be willing to let go of some things.
TIP: Stay with the mediation process for as long as you can. Don’t quit too early. Sometimes it takes a while for people to get warmed up to compromise. It’s a marathon, not a sprint. I like to tell people to think of it in terms of “rounds”. It may take 10 rounds, so don’t give up on the 2nd round. Let it play out and see where it goes. If you feel you have put in a good faith effort and it’s going nowhere, then, by all means, say you are done negotiating and declare an impasse. But as long as some progress is being made, you may want to give it a bit more time.
TIP: Take breaks. Take a little walk outside if it would help. If you are too cold/hot, thirsty, hungry, or otherwise uncomfortable, let the mediator know so they can make whatever changes are necessary.
TIP: You should carefully consider what the next steps will be if a settlement is not reached in mediation. What might you gain? What might you lose? Litigation can be very stressful, time-consuming, and expensive. If you have a somewhat decent offer in front of you, you will have to do a cost/benefit analysis to see if it is worth continuing to fight. Sometimes it is and sometimes it’s not. That has to be determined on a case by case basis. The nice thing about mediation being confidential is that it allows you to make offers without fear of it being used against you later. It doesn’t hurt to make offers; however, everyone needs to be aware that the other party can leave at any time. That’s why it is so important to think about your bottom line before you go into mediation.
TIPS FOR THE CONCLUSION OF MEDIATION
TIP: Read and understand any agreements that are put in writing (“memorialized”). Everyone must consent to all terms of a mediated settlement agreement.
TIP: Tell the mediator whether you would like to see the other party again or not. I think it is nice when people can shake hands whether the mediation resulted in settlement or not. If you are upset or the atmosphere is tense, it may be better for everyone to go their separate ways without seeing each other. That’s a matter of personal preference and I always ask. If you do want to see the other party, this is not a time to argue or make points. Just thank them for their time and move along. Nobody wants an uncomfortable confrontation or worse.
TIP: When you leave, you may be feeling drained. You may be questioning whether you did the right thing or not. You may replay it in your head for a while. That’s all very normal. Take it easy on yourself. Use the information in a positive way and go forward knowing that you tried. The dispute may be over or it may not be, but you should be proud of yourself for having the courage to participate in mediation.
These are certainly not the only tips I could give, but if you follow at least some of them it will likely result in a better experience. Mediation can be very successful when all parties are prepared for the conference and focused on reaching a settlement.