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One Classic Mediation Success: The Perfect Storm Or A Pattern to Emulate?

March 14, 2012

Good mediators really do care about assisting parties to resolution of their dispute.  And like good trial attorneys, if any mediation is not successful, they will mentally go over and over the events of  the failed mediation to try to identify what they believe went wrong. 

However, likewise, observing mediation success equally allows any interested mediator to gain valuable insight, including strategies to help his/her next participants to their own success..

But, observing well-prepared, opposing participants, classically following those known steps that almost always lead to resolution, actually succeed in a dispute that most mediators (and even the participants) would have guessed, pre-mediation, did not have a chance for resolution, is very special indeed

And, it quickly reaffirms that there is, and always will bea highly predictable path to mediation success that, if followed, can lead anyone to success.

The larger question is why so many others seem to have such a difficult time in following what is such an easy path?

It was not luck.  Unless luck includes having equally prepared lawyers and participants. It was simply the result of everyone’s effort, following the proper steps of pre-mediation and mediation effort, that led to the “perfect storm” of success.

And, if only I had a camera available and could have recorded this classic mediation effort, start to finish, it would have made a classic teaching aid for those others who want to learn to become their very best at their own mediation technique.

But, I had no camera and thus I can only try to convey, in my words, the classic pattern that unfolded in this one mediation success for others to consider.

This personal injury dispute was of highly disputed liability, usually a distinct negative for predicting mediation success.  And, the damages, although significant, were not of the catastrophic nature.  “Limited” damages, coupled with highly contested liability, usually is considered “strike two” for success because of the limited upside of any future verdict..

Further, the issues relating to legal responsibility were complex and technical, thus subject to great debate . And, this mediation was scheduled “early” in the formal litigation process.  Normally, two more added reasons for distinct pessimism for mediation success.

How then, did these parties, with these counsel, find the common ground for a complete resolution of such a predictable mediation failure?

As always, their ultimate success began with good, competent counsel on both sides, with good working relationships in this and with a history of prior encounters,  and each respecting the work product and trial capability of each other (and each others’ firms.)

Both sides had evaluated, early, their respective likely future outcomes and had early exchanged, written assessments of their respective positions for their opponents to carefully consider.

The parties had exchanged an early demand and an early offer with explanations of their respective positions.

Both counsel had actively planned for the wisest use of mediation and mutually and jointly scheduled it at the wisest point in the litigation with sufficient but not excessive discovery.  It was a case that any less discovery would have prevented any chance of mediation success.  But, anything more might have equally lost the opportunity.

Both counsel exchanged early, timely pre-mediation assessments of the issues to each other, along with early and reasonable initial demands and offers to be considered prior to beginning mediation.

Both followed up their written offers with personal telephonic pre-mediation conferences explaining the reasoning of their respective positions and offers.

Both counsel consulted upon and carefully, jointly selected a mediator who they each felt, for some similar and some dissimilar reasons, would be most assistance to them, and to their clients, in finding a mutual resolution.

Both counsel provided efficient mediation summaries to their mediator well in advance of the mediation date and thereafter, actively conferenced, in confidence, pre-mediation, with the mediator with strengths and weaknesses revealed and discussed. 

The mediator, in return and based upon those confidential disclosures, was able to recommend a few pertinent matters to each side, from a neutral  and helpful viewpoint, to strengthen their mutual presentations to each other and to the opposing parties.

Both counsel arrived timely at the mediation conference with a fully prepared client who fully understood the significant difference of the mediation process from the trial process and with pre-determined respective goals.

Opening statements of each side were limited, precise, and pointed to the relatively few matters felt important to success at mediation versus success at trial.  Both sides made multiple admissions of  a number of their respective weaknesses to their opponent, while countering those weaknesses with their obvious strengths.

Neither side used their opening in any attempt at intimidation or to try to convince the other of any likely future largely adverse outcome.  Both used this important process only to aid their opposition’s understanding of  why there were two sides of the issues to be considered..

Time lines, selected photographs, and the active use of a likely future verdict form during opening statements, by both sides, emphasized each sides primary points, even though conflicted.  Each side was able to understand, if not accept, the other side’s points.

With a limited time reserved so as to focus negotiation over rhetoric, each party stuck clearly to a negotiation pace recommended by the mediator to maximize each parties individual needs of contemplation, but remaining  well within the time alloted.

The Plaintiff gained immediate credibility and the real  interest of the Defendant by voluntarily offering an opening reduction from his already reasonable pre-mediation position which had been stated pre-mediation..

The Defendant, then immediately “rewarded” the candor and “good faith” of the Plaintiff by an equally reasonable increase from their own pre-mediation position, setting the visible parameters, early, for mediation success.

These early moves by both parties totally removed any element of ‘fear of failure” that so often dooms difficult and early negotiations from the outset.

Keeping on a measured negotiation pace with the clock, and acknowledging the other side’s needs for information and candor, each side actively used their mediator to “test” several alternatives they considered, prior to each succeeding move to maximize as much good will as possible.

Each side was able to understand, even if not agree, to the disputed position of the other.  Each side also appreciated the efforts of the other in  accepting that there were differences of opinion, either of which might be ultimately accepted by a future trier-of-fact.

Little time was wasted questioning the negotiating style or position of the other on any given proposal or counter-proposal.  Each side had pre-planned their desired end-goals and a rational path to that goal.  Each side stayed on their own general goals, while modifying as necessary as determined by points and counterpoint made and accepted; at least for the purposes of compromise.

Each side carefully calculated, for themselves, the likely effect of each position offered to the other and the acceptability of each offer as viewed from the point of view of the receiver of the offer.

In the end, with the help of the mediator, mutual ground, for comparatively opposite, but similar business reasons, was found.  And, with still enough time to fully consider the rather detailed and technical mediation settlement agreement necessary for both of the parties.

As you might suspect, the Plaintiff ultimately accepted slightly less than had been sought, while the Defendant agreed to a payment that was also slighty beyond their pre-mediation goals.

Neither party felt satisfied in falling short of their respective pre-mediation goals, but both were fully satisfied that the totality of the resolution was a far better alternative, for both, than any future trial.

And, after completion of their mediation settlement agreement fully documenting the administrative details necessary to fully close the dispute, their was a mutual air of success and relief that was palpable.

A perfect storm?  Not at all.  Simply good lawyers, actively planning for and using pre-mediation and mediation for the best interests of their clients, respecting the credibility and ability of each other, finding a mutually agreeable alternative for the benefit of both of their clients.

Success in mediation happens a lot.  But it happens much more frequently for some than others.  This case possibly demonstrates just a few reasons why.  Maybe some of these steps to success should become yours?

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