The problem in some Mediations is the attorneys. A good attorney believes in mediation and will encourage it as a tool to try for a settlement on an amicable basis. When done in a hands-on manner and properly handled, mediation should be a win-win procedure. The main reason why people are reluctant to mediate is the perception that the parties are “too far apart.” Or, “It would be a waste of time because the other side is so unreasonable.” Willingness to Compromise. This attribute is the most important of all. No mediation should ever be undertaken unless both the lawyer and the client are prepared to make a reasonable compromise. Participants must realize that almost every lawsuit involves risk. The party who is determined to “win” is usually wasting everyone’s time. Starting at the extremes. “They want how much? I think we’re just wasting our time here. Their case isn’t worth anything close to that.” “You mean this is all they intend to offer? I don’t think they want to settle.” Before any case can be settled, the parties have to enter into a zone of bargaining in which the demand and offer are both supportable in light of the facts of the case. Getting into this zone as soon as possible will make the process easier for all. Somebody has to make the first move and usually it will be the claimant. Making this move should not be considered a sign of weakness. A reasonable offer or demand will send a message to the other side that you are seriously interested in settling. Simply tell the mediator to convey to the other side that you are making a significant move with the expectation that they will do the same and provide a rationale for the move then tie it to a specific issue on which you are willing to concede some risk. More often that not, a significant move by one side will cause the other side to reciprocate, thus paving the way for an agreement. When preparing for mediation a client usually wants to talk to his lawyer about what the bottom line should be. While it is only natural to take this approach it is not necessarily productive. Parties who start with a bottom line approach often come to mediation with unrealistic notions. In order to make progress toward resolution they will have to set those notions aside.
It was Abraham Lincoln who said that “A good settlement is better than a good lawsuit.” The fact that the vast majority of civil cases are settled proves that his admonition has been taken to heart. And the widespread acceptance of mediation shows that it is a superior form of dispute resolution.
Achieving a good settlement through mediation requires the lawyer to take a different approach than in the courtroom. The use of litigation skills in mediation is not productive. Deal-making skills will serve the advocate far better.
If you prepare carefully, adopt a candid attitude, have patience and are willing to compromise, you will find that mediation works well for you and your clients.
You can read more of the TWELVE ESSENTIAL STEPS TO SUCCESSFUL NEGOTIATION:
Mediation Strategies: A Lawyer’s Guide To Successful Negotiation by Michael P. Carbone
http://www.mediate.com/articles/carbone7.cfm?nl=56#bio