In my experience of over 20 years as an employment attorney, being a full-time employment attorney-mediator since 2016, and teaching Mediation Advocacy and Negotiation at Marquette University Law School, I’ve put together my top favorite tips to help lawyers prepare their clients for mediation.
Here are my top 10 tips to maximize results for your clients during their mediation session:
1) Decide the Best Time to Mediate. Consider mediation when you have enough information to adequately advise your client and, if possible, before attorneys’ fees are a significant impediment to settlement.
2) Strategically Choose Your Mediator. In order to be effective, your mediator must be able to quickly build trust with the parties and counsel. Consider what mediator personality, experience and style will resonate with your client and the other side’s client and attorneys.
3) Work With Your Mediator. Make sure your mediator is familiar with the key legal and factual parts of your case, any settlement discussions, and the parties (and personalities) attending. Consider sharing as much information as possible with the other side before the mediation session. In many cases, the more time the other side has to consider that there is real risk to proceeding with litigation, the better. Let the mediator know in advance any issues that may help or hinder your client’s (and the other side’s) willingness or ability to settle the dispute.
4) Educate Your Client. Talk to your client about the cost, risk, time, and stress associated with litigation; the factual and legal weaknesses in the case; and about how mediation is different from litigation – i.e., that in mediation, the mediator is not a decision-maker, and that the parties (and counsel) will work together to find a resolution that everyone agrees is preferable to litigation.
5) Be Strategic With Your Negotiation. Start with a number that is aggressive but can be reasonably justified. A starting number that is viewed as highly unreasonable may discourage the other side from participating in mediation. Your starting position should also allow you to make a big enough move at the beginning so you can match or reduce the size of your moves as you proceed. Be sensitive to the “pace” of the negotiation.
6) Use Your Mediator’s Expertise. Encourage your client to talk to the mediator. This will be their “day in court,” and in many cases, being heard is an important part of moving toward resolution. Use your mediator as a negotiation partner – ask their advice and trust their judgment. For example, let the mediator use their expertise and judgment on how to best position offers and demands. Along those lines, let the mediator be the “bad guy” (or back you up when you need to be the “bad guy”). The mediator can reinforce to your client the weaknesses or risks in their case and of proceeding to litigation.
7) Get Creative. Generally, avoid take it or leave it offers or demands, as they are rarely well-received. Rather, if negotiations appear truly stalled, work with your mediator to jump-start negotiations – in many cases, even a small move or a non-monetary ask or demand can serve this purpose.
8) Avoid Surprises. Frequently, employment matters involve much more than the legal case. If there is something you or your client will need to resolve the matter, disclose it to the mediator sooner than later (especially if it may be unexpected by the other side). Your mediator can help advise you as to when and how to raise the issue.
9) Get Your Final Number on the Table. This is your client’s opportunity to find out their best option for settlement at this time. Each side should be sure that they did everything in their control to try to reasonably resolve the matter at the mediation session.
10) Have Patience with the Process. The parties are at mediation because they are at an impasse, so both parties will need to change – which takes time and can be very difficult and stressful. The vast majority of cases resolve at mediation, even if the parties feel discouraged at one or more points during the day. Encourage your client to stay engaged, and not to give up!
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.