Moving Past Good Mediating

Moving Past Good Mediating


Few mediators are excellent. The difference lies in the approach. Most approach mediation is an art. They’re good because they do what comes naturally. They ask good questions, make the parties feel comfortable, and, as a result, successfully move the parties toward settlement.

Then there are mediators who go beyond what comes naturally. They approach mediation understanding that mediation is a science, not an art. Every word counts and even one small change can change an outcome.

A true professional can make a difference, a difference that may show only in a few difficult cases. I studied mediation in law school and added my experience in business to develop a unique approach.

There are three (3) basics to my approach.

1. Be proactive.

Being neutral does not mean being passive. Question the merits of a case, relay negative messages, and remind parties of the negative consequences of failing to settle. Work hard. The key is a methodical approach (science, not art), where every statement, every issue and every position is examined for an opportunity to facilitate movement.

2. Take your time.

Take extra time with the plaintiff. Take time to explain the process and the benefits of settling. This can be invaluable. Be encouraging about good representation. Make sure each party feels heard and understood, apart from their representation. This causes a plaintiff to trust the process, sometimes avoiding the need to reject an offer as his only means to exert power. Be patient and continue facilitating when an impasse is mentioned.

3. Be creative.

First, do not overlook the obvious. Suggest an offer of a check today. It serves as a great reminder of attraction of putting the problem behind you. Point out how a lesser amount today might net the same with avoided fees. Share stories of unforeseen verdicts and appeals.

Also, do not confuse a posture with a true position. Once, a defendant, who was adamant about his right to the name, unexpectedly offered to change the name if the plaintiff paid half of the associated costs.

An agreement quickly followed because his true position was to avoid expenses, not his posture of wanting to keep the name. An agreement to continue to do business together is a great technique to bypass an impasse. A supplier may be staunchly opposed to a $50,000 offer to settle but when coupled with a new 3 year agreement worth the same or more, everyone wins. This approach is more effective in early mediations since most damage to business relationships usually comes later in litigation.