When disputes or conflicts develop, clients often are encouraged to enter into mediation. Unfortunately, some lawyers do not have a sound strategy for mediation and often this results in a less favorable outcome for his or her client. To obtain positive outcomes for clients, lawyers need to know negotiating tips and tricks. Over the years, experts in conflict resolution have recommended mediation strategies for lawyers, which include the following tactics:
1. Be prepared
Just like a trial, the key to successful mediation is preparation. One should have all the facts gathered and leave nothing to chance. Availability of all the facts legally the power to negotiate. Besides, when a lawyer is prepared, the client also feels confident and relieved.
2. Present the facts with lucidity and honesty
Two key traits for successful mediation are lucidity and honesty when presenting the facts. When honest information is exchanged between the two parties, there is less bitterness and paranoia among the participants. Withholding certain information is usually counter-productive and may even weaken the case.
3. Be patient
One great attribute to have during mediation is patience. The process of mediation can be long and monotonous but one should remain focused and patient. Attempts to rush through the process usually leads to negative outcomes.
4. Learn to compromise
A good personal trait to have when mediating is to know when to compromise. Prolonging the mediation after a certain point not only results in a waste of time, but it can diminish the chances of having a successful resolution for the client.
5. Ask for mediation
Too often there are cases when the two parties absolutely can’t stand each other and neither party is interested in communicating properly. When the two parties are unreasonable, mediation is a great way to bring them closer. At least, it can open up communication lines and determine where and why there is so much negative polarity. Even the most hopeless cases are often resolved with mediation.
6. Make a run for it
Often there are major disagreements and arguments between the two parties with no hope for a settlement. There may be many obstacles and a trial appears to be the only way to resolve the conflict. In such a scenario, the two parties have nothing to lose by coming to mediation. Resolving with mediation is far better than going to trial.
7. Know when to mediate
Ideally, it would be great if both parties start the mediation process as soon as any conflict arises. But in reality, both parties start preparing for a trial vowing never to give an inch to the other side. However, there are ample cases when despite a seemingly winnable case, the verdict turned out to be the exact opposite. Thus, it is important to be aware that sometimes it is a better time to mediate than to seek an ill-advised trial.
8. Speak to opposing counsel
Sometimes lawyers get so involved with a case, they are unable to determine their strengths and weaknesses. In such scenarios, it is important to pick up the phone and speak to the opposing counsel. Perhaps the other party is in the same position and both may agree to mediation. Communication with the other party is important as it does help resolve many cases.
9. Stay objective
It is important to remember that the eventual aim of mediation is to end the conflict or dispute. Thus, when going to mediation, refrain from name-calling, do not accuse the other party of lying, and do not curse as it is counter-productive. You want to settle this case and move on with life.
10. Support your facts
When you present any data, the mediator may want to know if you have any supporting data. So come prepared to support your statements and not only will the opposition note your strong position but it will enhance your standing in the eyes of the mediator. Always attach key documents and exhibits to your case.
11. Express interest in settling
Sometimes you may not be sure what the opposition’s stance is but after you read it and note their position is strong, express an interest to settle. This will save you time, money, and a lot of aggravation,
12. Do not be overconfident
There is nothing wrong with being confident at a hearing but in some cases, overconfidence can backfire because it may just be wishful thinking. You will never know what the opposing party has until you listen and read over their stance.
13. Have a valid valuation of the case
When coming to mediation, make every attempt to have a true valuation of the case. Have all the data supported by facts from previous cases. Do not rely on the valuation of a case based on one previous case only but use several and come to a median figure.
14. Make a great mediation summary
The mediation statement should be concise, to the point, mention the status of discovery, be neutral, and contain factual information. Do not exaggerate the facts and avoid making judgments. Also, offer a short statement on related and prior litigation, expert witnesses, offers of judgment, disposition motions, and who will be attending the mediation.
15. Deliver a solid opening statement
When starting the mediation, make a solid persuasive statement that is not offensive or demeaning to opposing counsel. Keep the tone neutral and adhere to the facts. The message you want to deliver is that you have come in good faith to resolve the conflict.
The process of mediation is not difficult but does require a strategy combined with certain personality attributes for a favorable outcome. A great many mediations result in a poor outcome for the client because counsel was simply unprepared. The key to winning at mediation is being prepared, knowing when to give and when to hold firm, and being amicable.
For more negotiating tips and tricks, contact Breakthrough Mediation.
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