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

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.