NAM PERSPECTIVE

February 2017

PREPARING FOR A SUCCESSFUL MEDIATION - IT'S ELEMENTARY!

By: Susan Hernandez, Esq.

Susan Hernandez, Esq. "All things are ready, if our minds be so"
William Shakespeare, Henry V, Act 4, Scene 3

"Before anything else, preparation is the key to success"
Alexander Graham Bell

"By failing to prepare you are preparing to fail"
Benjamin Franklin

It is likely that you have agreed to mediation because the alternative - continuing a costly and time consuming litigation - is undesirable. It is also likely that your adversary holds the same feelings as you and sees an early end to litigation as more fruitful than continuing a play that will take many turns and twists before its conclusion and that will perhaps be unpleasant for one or all sides. Having agreed to mediate, what is the first, best advice that a mediator can give to the participants? It is simply: Prepare for mediation as you would prepare for a court conference, arbitration, or even a trial. In short, know your case fully and present it to the mediator as you would to a judge and jury.

This is a routine repeated daily and seemingly poses nothing new for those experienced with the process. Yet, from the mediator’s point of view, those who truly desire the most from mediation should look for a fresh approach to ensure success. After all, the parties are paying for the mediation and, ostensibly, are engaging in the process to get results sooner than later, and without the stress and expense of a trial in the uncertain future.

You might say that mediation is not a trial requiring hours of preparation with the witnesses, preparation of exhibits, preparation of briefs, preparation of doctors, and on and on. You would be correct that is not the type of preparation needed for a mediation, but what is often seen by mediators is an incomplete appreciation by one or both parties about the issues in the case, the appreciation of the weaknesses - as important as the strengths - of the case, the likely arguments that the opponent will raise, and the settlement amount that the client will accept. We often see parties appear for mediation never having had a frank pre-mediation discussion about demands and offers to see if it is even worth going to mediation.

Too many times preparation has included opposing sides submitting "briefs" that are anything but. It often seems that the parties have merely instructed their secretaries or paralegals to send to the mediator "all the pleadings, depositions, medical reports, photos" and other "pertinent things" found in the file, with little regard for the necessity of all this material. Does it serve to enlighten the mediator to send depositions that include the addresses that the injured party has lived at for the last 20 years, or the education of the deponent, or each visit made to every single doctor with the complaints made during each visit? This is not true preparation, it is merely an easy way for the participant not to prepare and to send everything but the kitchen sink in the hope that the mediator will ferret out what is important and what is detritus.

Since this article concentrates on preparation, a few suggestions are presented here from the mediator's point of view. Before coming to the mediation, the parties would be well-served if you:
  • Map out your case carefully as if you were preparing for a court conference or a trial. Because mediation is informal, you should not feel that the procedure, and the hoped-for ending, is anything less than what would occur at court or at trial.

  • Analyze your case and have a full understanding of the liability and damages issues, including what courts have sustained in your department for similar injuries.

  • For your presentation at the initial conference between the mediator, and the other side, decide what you will reveal publicly and what you will say to the mediator privately.

  • Prepare a simple, uncomplicated case summary that you will submit to the mediator sufficiently in advance of the mediation so it can be read and understood by the mediator. This summary will aid in providing the mediator and the opposition with a cogent initial presentation.

  • Plan your strategy. You should know what you want to achieve - this requires realistic assessments made with your client before the mediation and the full knowledge of what your client will accept or offer - as well as how to present your position in a way that will be palatable to the other side.

  • Obtain permission to settle from your client before the mediation and have the client present or, at least, on call if negotiations move towards a settlement. This means having up-to-date lien information, including compensation payments that will expunge that lien, as well as the necessity for required set-asides.

  • Plan on leaving your ego at home. Plan on being courteous, to the other side, to their clients, and to the mediator. Plan on not answering any slights with comments of your own. Act as you would when presenting a case to the court at a conference or on appeal.
It is hoped that this article is not taken as a criticism of mediation participants as much as a guide to what this mediator has found to be successful from being a trial lawyer and a neutral in the mediation process, both as a court mediator and now a mediator in private practice. Remember that the mediator is a neutral with "no dog in the fight" except for the desire to see a successful resolution of the case before the mediator. Mediation is, after all, successful when the partnership between the litigants and the mediator is based on preparation and mutual trust.

In preparing for a successful mediation, remember the words of Mark Twain: "It usually takes me more than three weeks to prepare a good impromptu speech."

______________________________________________________________________________

Susan Hernandez, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel, and is available throughout the New York Metro area for arbitrations and mediations. Ms. Hernandez was voted one of the Top Ten Mediators in New York State in the 2016 New York Law Journal Reader Rankings Survey for the second year in a row and was voted a Top 10 Arbitrator in that same survey. Ms. Hernandez was also named a 2016 National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 48 nationwide. Additionally, she was the recipient of the 2015 "Mediator of the Year Award" by the Institute of Jewish Humanities.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.


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