As I mentioned in another post, I recently served on a panel of mediators — with Phil Adams, Randy James and Harold Stephens — at the Alabama State Bar’s annual meeting.

Harold likened mediation to an “American Ninja Warriors” competition (referring to the popular NBC summer program). For one reason, Harold noted, successful competitors “never give up.” I am a strong believer in persistence — both as a litigator and a mediator. It’s a message I routinely preach to my students at the University of Alabama School of Law.

When mediations don’t settle promptly

I’ve worked with parties involved in mediations for up to six months before their cases reached settlement. As those cases progressed, I maintained a consistent approach in communicating with the attorneys — and eventually, we succeeded in resolving their cases.

I recognize that there are instances when a case won’t, or shouldn’t, settle at mediation. Some cases simply demand a judge, jury or arbitrator to reach a decision. That said, the vast majority of cases can, and should, be resolved through mediation.

What should you expect from your mediator?

Mediations don’t always settle on the Day Of. Which is why it’s critical to select a mediator who’s willing to invest whatever time is necessary to help you reach a settlement. In other words, choose a mediator who’s as persistent in serving you as your clients expect you to be in serving them.

Quotes from two friends and colleagues of mine

(And no, I couldn’t say it any better!)

In my experience, the best mediators are tenacious, persistent, and continually
looking for ways to overcome an impasse. Far too often, I have seen mediators
give up when the solution was within their grasp, but they just didn’t have
the creativity or work ethic to seize it. A skillful mediator presses on even
when the outlook for a resolution may appear dim to the participants.
—Michael D. Ermert, partner at Hare, Wynn, Newell & Newton

Persistence in a mediator is as important as the mediator’s patience
and understanding of the parties verbal and non-verbal clues. I recently had
a mediation with Bill where the mediation itself lasted 8 hours but the followup mediation lasted about 30 hours. I received calls on weekends and holidays —
as did the other side — as Bill kept pushing the parties towards a resolution.
Frankly, the case would not have settled but for his persistence.
—Lee Copeland, Copeland Franco Screws & Gill

Mediation can provide certainty in an uncertain litigation process. By design, it enables the client to have control (at least over their own decisions), in a judicial process that none of us can fully control. My role, simply put, is to try to help lawyers and their clients make good decisions with the information they have available.

Life would be a lot easier if we made decisions for ourselves that are as wise as the advice we give others. I enjoy reading Eric Barker’s blog, Barking Up The Wrong Tree. Barker recently published a post offering four researched-backed secrets for making good decisions. Here’s a synopsis:

One: You Don’t Need More Information. You Need The Right Information.

Barker points to research indicating that when doctors are diagnosing heart attacks, a glut of information isn’t merely a nuisance; it’s potentially lethal. The solution for doctors? Spend less time amassing information, and more time better defining the problem — so you can get the right information.

Two: Feelings Are Your Friends.

Sure, decisions are best made when you’re calm. But ignoring emotions altogether is counter-productive. Professor Timothy Wilson, author of Redirect: The Surprising New Science of Psychological Change, points to a dating study in which subjects who followed their “gut feeling” about prospective partners were much likelier to predict the success of relationships than subjects Wilson described as the “navel gazers.”

Three: Know Your Strengths.

Barker cites a 2012 study published in Science Daily which suggests that you should trust your gut — but only if you’re an expert: “Participants who possessed expertise within a domain performed, on average just as well [when thinking] intuitively as they [did when thinking] analytically. In addition, experts significantly outperformed novices when making their decisions intuitively, but not when making their decisions analytically.”

Four: Make A “Good Enough” Decision.

It’s been said many times by many people: A good decision made now is better than a perfect decision in two days. Barker continues: “Being able to make decisions with imperfect data is critical.

In short, paralysis in analysis is a bad thing in all situations, and mediations are no exception. Focus on Good Enough, when overthinking a problem could lead to inaction.

So How Does All That Apply To Mediations?

Sure it’s common sense, but when you’re facing a tough decision, don’t forget to ask yourself, “What advice would I give someone else in this situation?” An outside perspective (even when it’s just in your head) can be extremely helpful in making the best decision. And since the quality of your decisions generally determines your success in mediations, sometimes it’s worth asking what you can do differently to make better decisions.

Several years ago, I wrote a Best Practices article for the Associated Builders and Contractors (ABC), advising contractors approaching or participating in mediations. Below is a summary of that article — which should be helpful to any clients participating in mediations.

Be Prepared.

The three keys to success in any endeavor are preparation, preparation and preparation. A mediation is no different. The best prepared party usually gets the best result. Research your facts. Create timelines. Organize your documents. Be ready to present your case in summary form. Be prepared to answer any question you’re asked. Obviously, your goal is to convince the other side that you have a strong case. Being prepared will help your lawyer do this.

Document Your File.

Think like a lawyer. Train your employees to do the same. A well-documented file enables your attorney to quickly and accurately determine risk and fault. It will also make your attorney’s job easier, and should reduce his/her legal fees.

Have The Right Representatives Present.

It’s not uncommon in construction disputes to have laborers, foremen, managers and decision makers present at a mediation. Anticipate who might be called-on to explain or respond to an issue at the mediation. Consider having them attend the mediation. And be sure to send someone with authority to settle the dispute.

Be Courteous.

You catch more flies with honey than vinegar. This adage certainly applies in a mediation, but you’d be surprised how often people ignore that simple truth; I certainly am. Rude behavior is rarely helpful. Come to the mediation with a spirit of civility — prepared to answer questions, share information and (hopefully) resolve a disagreement.

Have Thick Skin.

Parties often experience a wide range of emotions during mediation. There’s a good chance you, your company and your employees will be criticized — maybe even insulted — at one point or another. Don’t let your pride cloud your judgment. After all, your attorney is likely to level criticisms of the other party during the mediation. You should be able to take it as well as you give it.

Be Patient.

Mediation is a process, and one that takes time. There aren’t many shortcuts, so let the process work for you. Be prepared to commit an entire day to mediation. The more time, money and energy parties invest in the process, the more they’re motivated to reach a resolution.

Trust Your Attorney.

You hired him/her for a reason. Let them do their job. They want to help you make the best decision possible, and it’s their job to access risks and probabilities of success. They’re there to protect your interest — so trust them to do it!

Be Part Of The Solution.

Eight out of ten mediations end successfully. When you do your part as a client, it increase your chances of reaching a successful resolution, and achieving your goals at the mediation.

Should You or Shouldn’t You?

I recently served on a panel of mediators at the Alabama State Bar’s annual meeting. One of the attendees asked the panel if we encouraged attorneys to make mediation opening statements. I was the sole panelist who said Yes.

I believe opening statements are important; particularly when a mediation is attended by decision-makers (IE: corporate representatives or insurance adjusters) who’ve never met the other party, or the other attorney. It’s an opportunity to make a strong first impression, and set the tone for the mediation.

Who’s In Control: The Mediator Or You?

I think some mediators resist opening statements because they want to control mediations. They’re wary of the risk that one or both of the parties will immediately escalate tensions with inflammatory statements. I believe the parties in a mediation should be in control whenever possible. When something important needs to be said, I would rather it be said in the very beginning. Why? Experience has taught me that the things left unsaid in mediations create the greatest obstacles to settlement.

Yes, Mediation Opening Statements Can Hurt, But – – –

We’ve all seen, or handled, cases where something was said in an opening statement that was so incendiary that a tone of professional civility was never restored. But in my experience, this situation is by far the exception. In the vast majority of the cases I’ve mediated, the attorneys are smart enough not to sabotage the process before it gets started.

Roughly 80% of the cases I mediate reach settlement. In part, I think, because I stress the importance of clients having the opportunity to hear their attorneys advocate their position. Clearly and without interruption.

How Long Should An Opening Statement Be?

I’ve heard excellent opening statements that lasted no more than three to five minutes. I’ve heard others that took over an hour. Regardless of the length, effective opening statements set the stage for the hard work of negotiation.

What About Opening Statements In Joint Sessions?

In a November, 2015 article published by Law Times magazine, noted mediator Allen Stitt said, “If you’re going to pass up your only opportunity in the whole process to persuade the other side, then that is an admission that you are not skilled in an area that you should be as a lawyer. I see it as the equivalent of a lawyer who is about to go into court and decides not to argue a client’s case before the judge because they might get angry. In mediation, it’s not the judge who decides; it’s the other side.”

What’s Your Mediator’s Advice? Ask Them.

Of course it’s important to formulate your own thoughts about what your client, and the opposition, need to hear in your opening statements. At the same time, your mediator should be willing to share what he/she thinks would be helpful to say, in light of the other side’s position statement. Mediators often recognize issues in position statements that need addressing in opening statements.

Bottom line: Treat opening statements as the valuable opportunity they are. Don’t surrender your opportunity to give one.