Since mediation is a conciliatory process in contra-distinction to litigation, which is confrontational, you may not understand how you can help your client "win" in mediation.
In order to win in mediation you must focus on the client's objective to efficiently and in a cost effective manner, dispose of the dispute. Some experienced litigators will argue that if a dispute is resolved early without the benefit of full discovery, the client will be under represented since they may pay or receive more or less than is due. Generally, experience tells us that in the resolution of a dispute in most instances, limited information is necessary for a decision maker to act. Although it might be preferable to make a decision based on a full record, the financial and emotional cost of creating that record oft times is not worth the time and trouble to the client.
Mediation provides a setting different from litigation in that the principal or decision maker is mandated to participate in the process. In litigation, the principal is usually not a full participant in the litigation until their deposition is taken or there is preparation for trial. Even then their commitment is temporal. Since over 98% of all cases settle before full adjudication, what mediation offers is both cost saving and a creative participation by the parties in the solution to their dispute.
When approaching a mediation proceeding, several positions that may be counter-intuitive to an experienced litigator may be employed. When the party who is the most likely payer in the litigation suggests a mediator, embrace that suggestion unless you do not trust that the proposed mediator can keep a confidence. Think about it - if you want to convince the other side to pay you money, half the battle is won when they have expressed confidence in the neutral.
In setting the ground rules for the mediation, you should find out whether the mediator is facilitative or evaluative. If the mediator is evaluative in that he or she will "call the case" then unless you are assured that they are going to call it favorably to you, you should be disinclined to use that mediator. In New Jersey Rule 1:40-2(c) defines "facilitative" process as including mediation where the mediator does not impose his or her "...own judgment regarding issues in dispute." The Standards of Conduct for Mediators clearly recognizes that New Jersey follows the tenet that the parties shall self-determine their fate, therefore, reinforcing the facilitative nature of the mediator's role.
Next, you should prepare your client to actively participate in the mediation session and suggest under most instances that the principal address the adversary and their client when making an opening statement. Most lawyers in preparing for a mediation, if they do so at all, are inclined to tell the client to say nothing unless the lawyer has the opportunity to have a private conversation with the client in advance. This advice merely frustrates the process. In a business dispute for instance, the client is usually fully aware of the advantages and disadvantages of their position. Use their knowledge and expertise to your client's advantage by having the client prepared to advocate their position as well as evaluate the other party's position.
During a mediation, after the opening session, the parties usually break into caucus groups and the mediator utilizes shuttle diplomacy between the groups in order to identify interests and positions of the parties and help the parties create solutions. The mediator may also focus in on important information that each party needs in order to evaluate not only their position, but their adversary's position. During the down time when the mediator is sitting with the adversary party, proactively use that time with your client not only to evaluate your position but to put yourself in the shoes of your adversary so that you can see what they need in order to resolve the matter. A classic example of a creative and efficient solution may be as simple as an apology. In employment litigation involving wrongful termination where emotions can border on the extreme, the offer of an apology may not only take the edge off, but be valuable in reducing the funds that exchange hands.
In approaching mediation, try to step back and consider how you approached life before you were a lawyer. Strip the armor, the sword and the mallet from your position and focus on solution rather than combat. In that way you will find that you can gain an advantage for your client and literally win in mediation.
Robert E. Margulies, Esquire is President of the Justice Marie L. Garibaldi
American Inn of Court for Alternative Dispute Resolution and a Member of the Supreme
Court CDR Committee. He serves as a mediation educator for lawyers and judges throughout New Jersey.