By Steven G. Mehta
Worrying About Getting Business During Mediation
Once you are in a mediation, you cannot worry about what your actions will do to future business. You have to be in the present, here and now. Focus on what needs to be done to get the case settled and not on how will you be perceived if you did a specific action. Too many people focus on trying to get business rather than focusing on doing a quality job. The best way to get business is to do a good job, letting your work speak for itself.
Failing to Recognize How Time is Moving in the Other Room
On many occasions, as a mediator, you will find yourself in one room discussing the case extensively with the party or the attorney. Soon you find that 20 minutes has expired; then 30 minutes; now 45 minutes is gone by and yet you have still not gone to the other room. Although you are working, the other side doesn’t know what you were doing during this time period.
As a result, you have to make sure that you were able to manage time effectively. There are several things that need to be done regarding time management in mediation. First, you need to be able to recognize how much time to spend with a particular party. In the scenario above, you have to try to make sure that you keep up a reasonable tempo so that one side does not get anxious. If possible, try to make sure that you don’t spend too much time in one room without addressing the concerns of the other room. Second, if you’re not able to keep the pace of the mediation reasonably moving, then try to let the other side know why the pace has slowed down substantially. For example, if you’ve spent an hour in one room, let the other side know that you were facing some difficult issues and that is why it took so long. Sometimes, you will be kicked out of a room and are waiting on one side or another. If you can, take that time, to touch base with the other side and let them know that you are working on the matter.
People in mediation understand that there will be substantial time delays. However, by simply letting them know what you are doing, you will avoid having the parties arriving at different conclusions about what you’re doing with your time.
Judging the Results of the Mediation Based on the Papers Alone
This next one is submitted by KatriK on Twitter, who states “Our biggest problem is that some mediators read papers and decide then if there is going to be consiliation or not.” If the mediator is going to decide the case without having heard the case or the viewpoints, how can that be considered mediation. That sounds like arbitration. It is essential for the mediator to have an open mind. In one case, I read from one side that the other side had committed (and convicted of) perjury to assist her husband with an alibi for a home invasion rape trial. There were other nasty statements that were made about that party. I made a conscious decision to not pre-judge her and to listen to her concerns. By doing as much, she and her family thanked me for “listening” and “understanding” their concerns. She explained that she knew she made mistakes in the past, but that didn’t change what happened here. Not prejudging helped her to build trust in the process which helped to settle the case.
Never Ask to Meet a Lawyer Outside the Presence of His or Her Client, Without First Getting Permission From the Client
On many occasions, mediators forget that they are not always dealing with people who are professionals to the mediation process. Your mediation is often the first exposure for many clients to the legal process in the mediation process. They do not know what is customary for normal circumstances. However, they do know what they feel and how they feel about any particular situation.
Although the attorneys may have met with you on prior mediations, or it may be customary for you to meet with the attorneys separately, the clients often do not know that. In fact, many clients are suspicious of attorneys and the legal process. Rather than risk offending the client regarding why you need to meet with the attorneys separately, simply ask the client’s permission and explain why you need to have a private conference with the attorney.
Mistakes are inevitable. We have a few choices in mediation; one is to willingly make the mistakes and learn from them; the other is to fight the mistakes and remain stagnant. Thomas Edison didn’t make 1,000 mistakes before inventing the light bulb. He found 1,000 ways how not to make a light bulb.