Do You Have A Genuine Desire to Resolve the Conflict!
This may sound very obvious, but some parties to a law suit may have an agenda to inflict mental or emotional pain, to prolong or raise the costs of the litigation, not to resolve it. Therefore, this is a vital question that I may ask the parties when appropriate: "Do you really want to settle the case?" Some lawyers call this element mediating in "good faith." But no matter how you define it, this is an essential to any mediation. If the mediation is to be successful, the parties must have both the desire and the ability to engage in negotiations that may lead to settlement. Although the session may be court ordered and parties may be compelled to attend, mediation is at its root a voluntary process; each party must, therefore, have a real desire to settle the case or the process simply cannot work.
Each Party Must Have Full Authority to Settle
All of the decision makers must be present at the session for the mediation to be successful. Furthermore, the decision makers that attend the mediation must have the ability to commit to all of the relief sought by the opponent or at least up to the full amount of the claim. If for some reason an essential decision maker cannot or will not be present at the mediation, then please notify the mediator prior to the mediation, since it may be necessary to reschedule the mediation.
Listening, Not Just Hearing!
Listening is different from hearing. Listening is active, while hearing is merely passive. Listening requires a level of maturity, patience and respect that go beyond simple hearing. Effective mediation requires listening to what is being communicated by your opponent. Listening yields understanding and from understanding comes agreement. The skill of listening does not mean you must agree with your opponent, but it does mean you must be at least temporarily patient and nonjudgmental in taking in what the opponent is communicating. Simply listening to the opponent will help not only the listener to have a better understanding of the issue, but it will also serve as a catharsis for the speaker. If a party truly senses they have been listened to during the mediation, they will often be more inclined to yield in their position and be more inclined to resolve their dispute.
Creativity - Put On Your Thinking Cap! Thinking Outside the Box.
Disputes are often resolved at mediation with new terms that may not have been considered by the parties prior to the mediation. This is the "creative" element of the mediation process; new solutions to old problems will often come up during mediation. These new possibilities of settlement that could form the basis of an agreement are the result of a synergistic process that naturally occurs at mediation when you combine three things: a participant willing to listen; a skillful attorney who is able to adapt to new facts and opportunities, and an experienced, creative mediator who is accustomed to "thinking outside the box." A good mediator will do more than simply convey offers or "carry water back and forth" for the attorneys; a skilled mediator will get the parties to consider new "creative" solutions beyond what either side would have considered alone or without the help of a skilled and dedicated mediator.
Adapability - Ask How Can This "New" Element Fit Into the Solution?
The ability to effectively respond to new or unexpected facts or to creative new settlement options that often arise during mediation is the heart of adaptability and is another key to successful mediation. Adaptability is the hallmark of a good attorney who can react calmly yet instinctively to a new or unexpected situation. We often say that attorneys who do this skillfully in court can, "think well on their feet." But this skill is also helpful at mediation, where the next settlement offer may come with an unexpected document or an unfavorable witness statement. Just as in court, the party who encounters the unexpected is best served at mediation by an attorney who shows adaptability to react and respond in a rational, creative manner. Mediation is not simply about compromise and meeting "somewhere in the middle," it is often about considering new facts and opportunities and then adapting and responding to them in a way that will achieve the client's objectives.
Confidentiality - Can You Keep a Secret?
This is one of the mandatory "keys" to mediation. There are two levels of confidentiality inherent to the mediation process: First, there is confidentiality of communications that occur at the mediation session; these mediation-related communications are inadmissible in evidence and may not be raised in court; nor should they be discussed with parties who are not directly related to the mediation or the law suit. This confidentiality protects not only the statements made at mediation but also any settlement offers conveyed during the session. Second, there is yet another level of confidentiality that covers anything told privately to the mediator during individual caucuses, which are separate sessions conducted with the mediator but outside the presence of the opposing party or their attorney. These private communications with the mediator may not be disclosed to the opposing party, unless the mediator is specifically authorized. The dual layers of confidentiality should encourage the
Honesty - Be Honest With the Mediator and With Yourself!
In order for the mediation to work, each party must be completely honest three levels. First, the party must be honest with himself or herself about the potential weaknesses of their case. This honesty requires the ability to be fair-minded, realistic and able to make a decision free of bias or self-deception; it is often achieved only after consultation with their own attorney. Second, it goes without saying that a client must be completely honest with their attorney; they must be honest not only about the favorable and unfavorable aspects of the case but also about priorities. For instance, the client must tell their attorney which positions in the lawsuit are fixed or immovable and which positions are flexible and could be compromised under the right circumstances. Third, honesty with the mediator is required. There is no reason to hold back from the mediator since you have the dual layers of protection offered by the confidentiality rules. In short, with very narrow exceptions, nei
Reciprocity - For Every Action There Must Be An Equal Opposite Reaction
It is a universal truth that something must be given in order to get something in return. The converse is also true - if you give something, you will get something in return. Not surprisingly, this law lies at the heart of effective negotiation and equally applies to a successful mediation. You might say the process of give and take is the life blood of mediation. The Law of Sowing and Reaping in Action.
Cooperation in the Process - Follow the Mediator's Suggestions
The nature of mediation requires cooperation. Even if a party is skeptical about the process, but they nevertheless cooperate by listening and following the attorney's (or the mediator's) suggestions, at a minimum they can gain a better understanding of their opponent's position. Following the attorney's or the mediator's suggestions on how and when to "send a message" or what "message" to send can greatly benefit parties who cooperate in the process. Cooperation can also generate new positions or creative solutions that no one may have previously considered. The parties must also cooperate in following the mediator's direction on when to terminate or adjourn the mediation. The mediator is in a unique position of knowing each party's secrets, and therefore, is in the best position to know either when the mediation should be adjourned, when an impasse should be declared or if settlement is close at hand. Cooperating with the mediator is absolutely essential to a successful mediation.
Knowledge About the Law, the Facts and the Other Side!
The participants in the mediation must have both an understanding of the facts of the case and of the governing laws that apply to the controversy in court. Understanding the facts of the case, which includes adequate discovery and preparation, together with knowledge of the applicable law will usually lead to a reasonable assessment of the case, which is halfway down the road towards settlement. Sometimes the parties acquire this knowledge at the mediation. (Note: This is one area where a knowledgeable mediator, with actual courtroom or judicial experience, can make a difference by helping the parties to analyze the new facts or the new legal arguments). Regardless of when or how the knowledge is acquired, the parties must have sufficient information available to make an informed choice about resolving the case. One might say: at mediation, knowledge equals power ... the power to obtain a favorable settlement.
Additional resources provided by the author
Article Adapted from:
The Diaz Mediation & Arbitration Center
In the Historic Milam Building
115 East Travis Street, Suite 333
San Antonio, Texas 78205
www.DiazMediation.com [email protected]
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