Are You Following the Three P’s of Successful Mediation?
While catching up on old episodes of Mad Men, I heard one of the characters refer to the Three P’s of marketing (product, price and promotion). This got me thinking, “Are there three P’s of successful mediation?” While the mediations we conduct daily at Miles Mediation can be quite complex, the more I thought about it, the more I realized that my most successful clients follow the Three P’s of Successful Mediation: Preparation, People and Patience.
First and foremost, a mediation is the most productive when both parties have spent some time preparing their case. It demonstrates to all involved that you are serious about finding a resolution and that you are there to devote your efforts to doing so. I’ve noticed over the years that the attorneys who get the most out of their mediation generally do the following:
Prepare their opening. There are many lawyers out there who have the experience and skill to “wing it.” The rest of us need to review, refresh and rehearse. Your opening statement should be like a movie trailer. Give the other side a glimpse into what they might see at trial in the unlikely event you don’t settle; but as I will discuss later, don’t do too much to antagonize the other side.
Prepare their client. If your client hasn’t mediated before, take some time to explain the process to them. Tell them what my role is. Discuss candidly their case’s strengths and weaknesses, and remind them where the parties stand going into the mediation so that when they hear the first offer, they aren’t surprised. If they are prepared, we can get right to business.
Prepare the mediator. While I always appreciate a well drafted a mediation statement, you don’t always have to prepare a formal document. You could call me beforehand to lay out the key facts, critical issues, the players and their personalities. The more I know, the more effective I can be.
As Benjamin Franklin said, “By failing to prepare, you are preparing to fail.”
In many cases, one party often views the underlying dispute as a personal insult. They believe the other side has been indifferent to their needs, or worse, is out to “get them.” Whether justified or not, these feelings of resentment prevent them from analyzing their case objectively. As most mediations go to caucus immediately after the opening session, you need to make the most of the limited window of opportunity to address directly the other side. While preparing and delivering your opening, be mindful that your audience may be preoccupied with assessing blame or is harboring ill will toward your client. Don’t send them to the caucus room thinking that you were rude, adversarial or worse, disinterested.
Consider attempting to deflate the tension with a well-timed apology. Neither you nor your client have to give an elaborate mea culpa, or admit liability, but a simple, direct statement of sympathy, concern for their situation goes a long way to making the other side feel as if their concerns are being recognized and that they will be treated with respect.
If you do not feel an apology is appropriate then keep your opening neutral in tone and avoid making argumentative and potentially inflammatory statements. Save the discussion of how those facts might affect settlement for later, when I can present them and help take the sting out.
Remember Ben Franklin’s wise words, “Be not stingy in what costs thee nothing, as courtesy, counsel, and countenance.”
At some point in nearly every mediation I am asked, “Can’t we just cut to the chase?” Sometimes this frustration emerges early; other times it appears much later in the day. No matter when it arises, I always ask the parties to be patient and trust the process. It doesn’t sound like a very reassuring answer, but acceptance time is a key factor in mediation.
People resist change. They have certain expectations and as the process unfolds, those expectations are challenged. They may find these discussions unpleasant and as you might expect, they resist. It may take some time for the other party to come to terms with the compromise solution the parties are working toward. Closing the gap in one fell swoop may leave one party feeling as if they have conceded too much ground.
Have patience in the mediation process. Allow the parties time to digest the information that has been exchanged, fully understand the options presented, comprehend the potential results, and come to terms with settlement.
As Poor Richard himself once said, “He that can have patience can have what he will.”
Is there more to being successful in mediation than these three P’s? Surely there is. But these three basic principles can put you on the best path to achieving the results you and your clients want.
If you would like to schedule a mediation with me, please contact Mariam at (678) 320-9118 or firstname.lastname@example.org, or you can use the online scheduling app.
I look forward to working with you soon.