7 ways to communicate more effectively with your mediator

Let's say you've agreed to mediate a lawsuit for a client. You haven't previously worked with the neutral whom the other side proposes. You know that it's crucial to establish a productive relationship with the mediator. How can you educate an unfamiliar neutral about your client, your case and your goals for the mediation? 

Here are some tips and tactics to help clients and counsel get results.

1.      Write less--and write more. Consider writing two submissions for your mediator. The first one is a traditional case statement that summarizes the status of the litigation and the key facts, evidence and legal issues. Try to keep this letter short, tight and not too inflammatory, and share it with the other side. This can identify where the parties agree on core issues and where fundamental disconnects exist.

The second submission is just for the mediator. This is where you can privately educate the mediator about things like case strengths or weaknesses (for both sides), client concerns and potential roadblocks to settlement. You want your neutral to have this information as early as possible.

2.      Conduct a candid pregame call. If your mediator sets up a phone/video call before a mediation, it may be preferable for trial counsel to participate on the call--no client reps. This can help the mediator and the attorneys develop personal relationships. More significantly, this is another opportunity to educate the neutral about potential difficulties with the case or a client. A candid pregame call with the lawyers will allow the mediator to gauge the parties' expectations. The mediator can also sidestep--or focus on--thorny personal issues that may not be apparent on the face of a typical mediation brief or civil complaint.

3.      Consider going halfsies. There can be real value in booking a half-day mediation session instead of a full, day-long proceeding. It's an obvious way to communicate that one side doesn't assign much value to the litigation. However, it can also signal that the parties don't want to spend time on an extended discussion about discovery, motions or trial; they're prepared to negotiate a deal quickly. Finally, a shorter session can be offered as an opportunity for the lawyers to exchange information outside of the formal discovery process. Many disputes (especially pre-litigation matters) can benefit from a short session where the parties actively educate each other about their positions before entering into traditional settlement talks. 

4.      Plan for more than one session. On the flip side, there may be circumstances in which the lawyers know in advance that a case won't settle in one session. Perhaps a non-U.S. company will need more time to consider settlement offers or the outcome of a mediation session. Or maybe the parties believe that a case involves such a difficult issue (death/traumatic injury) that an extended break in the settlement process will be necessary. It may be helpful to plan for two sessions to accommodate these realities. Ask your mediator if a stop-and-go structure can be used.

5.      Take advantage of in-person mediation. In-person mediation may yield significant communication benefits for you and your client. In an era where clients rarely go to a courthouse hearing--or even to the opposing side's office for a deposition--an in-person mediation will feel like a significant event. That may translate to your client having a greater personal investment in the mediation process.

An in-person session also gives the mediator additional opportunities to talk privately with counsel. The mediator and the lawyers can meet briefly in a hallway or a separate breakout room outside of the presence of a client. Informal conversations during breaks can update a mediator about the status of the discussions and a client's current position. This information can be crucial to helping the parties settle their case.

6.      Create offline opportunities during video sessions. If the mediation is being conducted virtually, some of the above can be replicated. Exchanging cell phone numbers with counsel at the beginning of a session allows the mediator to speak with counsel "offline." This is akin to the hallway conversation during a break, and it provides a chance for the counsel to update the mediator privately about how the session is going.

7.      Communicate the bottom line, or "Tell me what you want, what you really, really want." As inspired by the lyrics of a Spice Girls song, there's usually a time during a mediation when you should tell the neutral what your bottom line is. It could be your final take-it-or-leave-it demand or offer. It could be what you expect a mediator's proposal to be. Or it could simply be a nudge to the neutral ("If you can get the other side to this dollar amount, we'll say yes."). The most important moment in a mediation is when a party candidly provides the mediator this information, which they can then use to figure out the most effective way to achieve settlement.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.