If you and I have worked together before, in a mediation setting, you have probably heard me say that “mediation can be one of the best days in the case, because hopefully everyone is here for the same reason, and that is to get the case settled.” In my opinion that’s true. No one. I mean no one wants to get the case settled more than me when I am the mediator. But, settlement just does not happen. It takes preparation. It takes work. It takes understanding and appreciating the process.
Getting ready for a mediation does not begin the morning of the mediation. It drives me crazy when I hear someone tell me, “I haven’t had a chance to speak to _ about this yet, so why don’t you just go ahead.” If this is the scenario, you are already playing from behind. Does the party know what the mediator’s role is? Does the party understand the process? Does the party understand how negotiations work and the reason for certain “moves?" Maybe it’s not a party. Maybe it’s a party representative. Maybe it’s an insurance claims professional. Has the attorney spoken to the claims professional about the case? Has the case been evaluated far enough in advance to have a productive mediation? Have the strengths and weaknesses of the case been discussed? Trust me, this is not an all-inclusive list. There is work that needs to be done in advance of the mediation if the mediation has any shot at success.
When I first began practicing law, in the pre-Covid, pre-remote world, naïvely, I thought my role at mediation was to show up, answer questions when I needed to, and enjoy the snacks and coffee that were provided. The longer I practiced, and when I began to mediate myself, the more I realized nothing could be further from the truth. No matter what side of the case you are on, you have to come to mediation and be prepared to work. What does that mean?
For starters, know your case. Don’t expect the mediator to know everything important about your case from a very brief mediation statement or a fifteen-minute conversation when the mediation begins. Give the mediator enough information pre-mediation for the mediator to have an intelligent conversation about the issues in the case. Be prepared to answer questions about the case.
I rarely see anyone leave a mediation with everything they want. So, often, I tell parties a sign of a successful mediation is when both sides are somewhat dissatisfied with the settlement agreement. Why? Because it’s compromise. Both sides must be ready to reach a compromised settlement agreement at mediation. There are times at mediation when one side expects the mediator to basically convince the opposite that they are right. In other words, one side may expect to the other side to “cave” or “give in” and that is just generally not how mediation works. Maybe we should change what we call mediation. If we call it a “compromise session” rather than a mediation, that may be a more effective way to communicate to some folks that they are not going to get everything they want at a mediation if the goal is to get the case settled.
Understanding the process is more than simply knowing what a mediation is. By this, I mean recognizing there are effective ways to negotiate and, likewise, there are ineffective ways to negotiate. I have conducted multi-hour mediations that never get off the ground. No one wants to “move.” They are waiting on the other side to "get real." Now, the reality is that is it their case and I respect that. The parties and attorneys are entitled to negotiate the way they see necessary at mediation. But, if everyone is at the mediation with the goal to settle the case, then may I make a few suggestions?
Listen to the mediator. You may not agree with him or her. But, remember, the mediator has the benefit of being in both rooms. The mediator may hear things that may not be able to be repeated, yet. The mediator has the opportunity to listen to the other side, read body language and get a feel for what each side’s goals may be. Don’t be afraid to “get real” when it comes to negotiating. Someone may tell me, “I’ll get real when they do.” Well, my question is, “does that really matter?” What if you decide to "get real" first and the other side continues to negotiate from another planet?” Can you just change your negotiation strategy on the next round? I think so. The parties and attorneys are free to negotiate how they see fit at the mediation.
Mediation can be fun. It can be equally difficult even when everyone is ready for the mediation. The less prepared that any side is, or the less willing to do the work, the more difficult it can become. Work the case up in advance. Come to the mediation ready to work. Pay attention to what you learn during mediation as that will generally put a party in the best position to respond and negotiate. If the goal of attending mediation is to settle the case, put yourself and the mediator in the best possible position to get the case across the finish line.
Tommy Santel is a co-founding partner of Parkerson Santel Garner PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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