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Become One of the Top Ten Percent of All Mediating Attorneys

April 11, 2013

Most attorneys wish to become very competent at what they do in their practice of law.  Most also covet being recognized as one of the best at what they do.  But, it is really very special to become known as one of the  “top ten” of anything in the law!

I have good news for you.  With effort, you can easily and quickly achieve “Top Ten” status in your law practice of mediation.

As with any achievement in anything worthwhile, there are usually a few minimal requirements to even be considered for inclusion in such a top-tier.  In mediation, however, there is only one requirement to achieve such a rare and exclusive group.

That single requirement?  Prepare for your mediations!

That’s right.  If you will only actually PREPARE*, timely, for your mediation, you will instantly become one of the top ten percent of all attorneys who mediate.

Shocking, but true.  Statistics show that only about 10% of attorneys, for both sides, of any mediation, actually put in the full pre-mediation preparation time and effort which is necessary to maximize the success of their formal mediation.  (Actually, it is far worse for the Plaintiff’s Bar; the Defense Bar’s 35%+ comparative advance preparation actually raises the overall average of all mediating lawyers!)

(*Note:  The term ” preparation” is quite a subject in itself and involves subjects ranging from “what” to mediate, “why” to mediate, “when” to mediate, “who” to mediate with and “how”, including the “processes” of timely information exchange and proper negotiation technique.)

Those same statistics, however, also show that those attorneys who actually do prepare, likely achieve 70-75% of the total successes found by  the respective parties to all mediations! 

Success does not necessarily mean only the simple act of obtaining a resolution.  Frankly, not every “resolution” can really be objectively described as a success (for both sides).  And, many non-resolutions still achieve “success” in matters more important than immediate resolution. But, generally, any total success will  usually include a timely, mutually fair resolution and the resultant end of the stress and expense of litigation.

Have you ever wondered why some attorneys seem to always  achieve their goals at mediation?  While others complain that mediation, for them, is always a waste of time?  While, of course, the subject matter may dictate some basis for such repetitive negative outcomes, more often than not the outcome at mediation is directly proportional to the effort made toward it.

Which is not surprising when you consider that the same relationship of relating effort v. result has been known, forever, in looking at the same statistics of any trial, bench or jury!

Or, could it be something more when it comes to the practice of mediation?

This lack of preparation for mediation seems far too pervasive to be termed the “exception” of any particular attorney’s practice.  Even attorneys who have impeccable reputations about being well prepared for hearings, or certainly trial preparation, are included in those who seem to take such a seemingly cavalier attitude toward mediation.

Many reasons have been advanced for this trait.  Trial lawyers’ conscious or unconscious “resistance” to settlement that avoids “what they do”.  The perceived “un-manliness” of mediation.

Or is it the difference in legal process; the requirement of cooperating, rather than forcing your/your client’s will upon another?

Or, the alleged lack of a financial result proportional to the preparation effort required (a self-fulling prophecy?).

Or is it just a need for some “respite” ( a bit of rest, a break in the grind) in the long and ongoing, arduous litigation trail toward “inevitable” trial (another self-fulfilling prophecy?).

All of these “excuses”, undoubtedly, play a role, depending upon the attorney.  But, there are other collateral reasons that must be considered.  And they may just come from the “culture” of the trial lawyer.

For example, there are an inexhaustible supply of seminars and publications upon how to become a wonderful trial lawyer.  There is comparatively few resources to learn how to become a successful mediating attorney!

There seems to be no “pride” in lawyers about their successes in mediation.  Every trial lawyer alive loves to tell his friends about his successes in trial.  When is the last time any “trial” lawyer bragged about his mediation successes?  Or, told anyone else HOW he/she succeeded in their mediation?

And, yet, ALL clients  love success at mediation.  And, brag about it.  And, tell their friends.  Particularly about their time and their money they saved by NOT going to trial.

It therefore seems that many “trial” lawyers are missing a “good thing”.   After all, all trial lawyers work for their clients, not themselves.

In short, unless you WANT to learn how to succeed, and actively look for ways to do it, likely you have not and will not even pay attention to what you are “missing”.

And, boy, what you are missing!  That other top ten percent is laughing all the way to the bank.  While many attorneys are working weekends in preparation to try a case that likely will pay them (and their clients) nothing for years, those lawyers really good at mediation are at the golf course!

Trust me, it is not hard to prepare correctly.  It just takes time and effort and practice to get it right.  But unlike the uncertainties of a judge or jury, mediation “certainty” is much, much more attainable with such comparably easy effort.

And, you can start learning that proper preparation today.

In your spare time and generally for free.  The internet is literally at your fingertips for the taking.  And, since you are already “here”, you can start by reviewing some or all of my other eighty-seven, plus, (87+) articles (to date) on trial practice, mediation and negotiation (with more to come) that can get you headed in the right direction.

I am not alone.  Ask any mediator.  If they have one recurring piece of advice to attorneys for any mediation participant, plaintiff or defendant, it is: “prepare”!

If you really will, you will instantly become one of the “top ten percent” of all mediating attorneys.  (Hopefully, as more attorneys attempt to join your lofty heights, it will take even more effort to make it to the top.  So, get a jump on your competition, now!)

How much easier can it  be to achieve such instant lofty status in the practice of law?  And,  make money.  And, by the way, end up with numerous happy clients who will then send you even more business!

Dan, from Tavares, Florida.

5 Comments leave one →
  1. April 11, 2013 9:50 am

    Dan: your article about lack of preparation at mediation is right on point. I recall a mediation where plaintiff announced during openin statements that they were expecting to receive a large dollar amount from the defendant. The defendants’ reaction to this demand, as well as their response during opening statements, made it clear they disagreed with the numbers claimed by the plaintiff.

    I met in caucus with plaintiff and counsel to try to get a good handle on how they arrived at their numbers. Neither could recall exactly how they determined the amount due, neither had copies of the financial documents and ledgers that would help them refresh their recall, and they didn’t bring the relevant file. A lot of time was spent (arguably wasted) in that caucus trying to reconstruct the records or refresh their memory. When I caucused with the defendant, they were more prepared and had spread sheets detailing the financial issues. Unfortunately, when the defendant reviewed the numbers reflected in their own spreadsheets, it was determined they were not current. Additional time was spent trying to clarify the numbers on their end.

    I am frequently puzzled by the lack of adequate preparation and attention to the details that will undoubtedly be essential to achieving a resolution at mediation or success at trial. Lack of preparation will definitely hinder efforts to achieve a resolution at mediation.


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