Mediation is an arduous and stressful process where the parties often vent strong emotion in an environment less controlled than that provided by a courtroom. I have often had attorneys become very uncomfortable at the apparent chaos of a mediation only to express their surprise at the ultimate, amicable settlement.

So what is the measure of a successful mediation? An obvious one is settlement. After all, isn’t that why you are there? There are other measures of a successful mediation. For example, the parties may determine (based on a need for precedent or to deter further litigation) that trial is a better alternative than settlement. On some occasions, I have seen parties to a business dispute create an entirely new business relationship with each other in the course of the mediation.

Perhaps the truly successful mediation is one where the process allows the parties to explore all of the ramifications of a dispute and then make a truly informed decision as to how they want to resolve it. It might be trial or it may be another means of resolution considered before. The key is that parties make the decision about what is best for them based upon rigorous analysis of all of the facets of the dispute.

To that end, I think a mediator has to do two things:

1. Create the environment for candid and constructive communication.
    
2. Locate and identify the barrier to settlement.

In order to get the most out of the process, counsel and the parties should be prepared to explore the legal, factual, economic and emotional components of the dispute. Mediations can be messy, compared to a tidy jury trial. Be patient. Going through the messy part is probably necessary to reach resolution.

What follows are a few ideas that may help you at a mediation to achieve more benefit from the process.

1. Make sure that all of the decision makers are at the mediation. In convening the mediation, it is important that all of the parties to the dispute and those with decision-making authority are at the table. Not having a necessary decision maker at the table compromises the chances at settlement. If (as a result of distances, finances, value of the case) it is not realistic to have the person present, clear it with the mediator and the other side before you get to the mediation. Be prepared to assure everyone that you are coming to participate in good faith; that you, as counsel, will have the authority to settle the case and that the person who cannot be there will be available by phone. Remember, not having the decision maker there may hurt the chances at settlement.
    
2. Make sure you have set aside enough time for the mediation. Often, parties and counsel are anxious to know “bottom line” demands and offers immediately after opening statements and after the first caucus. It is important to let the mediation process play out. The process is there to help change people’s minds about strongly-held beliefs. It takes, and deserves, time. Remember, you may have to allow things to get messy before you know what needs to be cleaned up.
     
3. Prepare yourself and your client for what to expect at the mediation.
    
   1. Your client needs to be conditioned to the fact that, at the mediation, they are the ultimate decision makers. Mediation is probably the only process available to them in which the parties to the dispute can control the outcome of their case. With a trial or arbitration, some third person or jury will make the decision about the outcome for them.
       
   2. The process is confidential and confidentiality makes for candor (at least with the mediator). Candor at the negotiation table gets cases settled.
       
   3. Call the mediator before the mediation and ask how that mediator conducts the mediations. Ask about their style of mediation. Ask what they expect of you. The mediator is allowed to have ex parte communications with counsel and those communications are confidential.
       
   4. Put yourself in the shoes of your opposition and anticipate what they may view as the resolution they would be satisfied with. What is motivating them? What are their strengths? What are their weaknesses?
       
   5. Before the mediation, explore with your client the strengths and weaknesses of the case, ranges for settlement and costs of continued litigation. Find out what your client really wants and why. Better to get them acclimated to these issues before the mediation because you can bet they will be explored at the mediation.
       
4. Be prepared for rough-and-tumble negotiation. Negotiation is a demanding and frustrating dance. The psychological importance of negotiation to the parties cannot be underestimated. When resolution is reached, the parties need to feel they have reached a value that is fair and that they are leaving “nothing on the table.” That happens through the give-and-take of the negotiation process. Don’t short-circuit the process with the “take-it-or-leave-it” move or get discouraged at the other side’s failure to make an early “significant” concession. Each move communicates information beyond the number conveyed. Listen carefully to the moves and they will communicate where and how far the other side will go.
    
5. The client should be prepared to tell their story. Especially if you have a client with jury appeal, have them tell their story. We are the only species on the planet that tells stories. Allowing a party to tell their story in an incredibly powerful necessity in resolving a dispute. Prepare your client to tell their story and prepare them to listen to the other side’s story. This is a valuable experience that your client may not get again in litigation or trial. Don’t waste it.
    
6. Remain flexible. Express flexibility in your negotiations. Jumping to bottom-line demands or offers is ineffective. Do them too early and no one will believe them. Strategize with the mediator, in caucus, about what you want to communicate with your next negotiation move. This can be far more effective than the “take it or leave it” offer. 
    
7. Be courteous but firm. Being argumentative or abusive will short-circuit the process. Do communicate your willingness and ability to try the case if necessary. Express willingness to walk away from the deal if you feel the other side is not being realistic. Reward cooperativeness with cooperativeness. Respond to competitiveness with competitiveness. When the other side returns to cooperativeness, reward it with cooperativeness. 
    
8. Think outside the box. Sometimes the financial gap between the parties cannot be breached. Be prepared to consider the interests of the parties that are underneath the stated financial positions. It usually is about the money, but don’t lose sight of the fact that the money is often a symbol for something else. Be ready to look at some creative ways to solve a problem that may not involve money and will allow you to bridge the gap. Be willing to think cooperatively and not competitively to find other ways to resolve a case.

   Ultimately, as we become more experienced and sophisticated in the use of different dispute resolution processes, I look forward to a time where counsel and their clients will evaluate the nature of the dispute and select mediators on the basis of their expertise and on the basis of their particular style of mediation. Certain mediation styles work well in certain kinds of cases. Being aware of what style is needed, what clients will respond to, and the nature of the conflict will help in your decisions about the appropriate means of resolving the dispute.