To quote Tom Cruise from the movie, Jerry McGuire, “Help me help you.”
Mediation can be an effective tool in settling cases. However, as the mediator, I can only do just so much to help forge that settlement between the parties. If clients come to the mediation with unrealistic expectations or are not mentally prepared to put an end to the dispute (i.e., they are not “over it” yet), the process becomes much more difficult. Some of the things that counsel can do to increase the chances for settlement at mediation are the following:
- Make sure your clients have realistic expectations going in. It is perfectly acceptable to hold back your best and final offer back until later in the process, but don’t let your client get carried away with the initial offer or desire to hit a “homerun” when you know it is unrealistic.
- Communicate any obstacles to settlement with the mediator in advance of the mediation. For example, your client may be reasonable, but may have a friend or family member (or even worse, a brother-in-law who is an attorney in another state who practices in a completely unrelated area of the law) “in his or her ear.” This third-party may have the best of intentions and may truly believe they are being helpful, but the attorney handling the case, who knows all aspects (including weaknesses) of the case, has a much better feel for how the case might go and what problems the client will face in prevailing at trial (based upon a complete understanding of the facts and issues, as well as the law).
- Use mediation summaries to educate your mediator. Very often, I find myself provided with the pleadings, motions and other filings in the court file, but without any other insight as to the strengths and weaknesses perceived by the attorneys. While these issues will be discussed at mediation, by educating your mediator in advance, it may help to create an easier pathway to settlement and save everyone valuable time and money.
Many attorneys who have mediated their cases with me have commented that these suggestions have helped pave the way for a more productive mediation. I hope you will find them helpful as well.
Rod B. Neuman, Esq. is a Florida Certified Circuit Court Mediator and is available to mediate your dispute, and is also approved to mediate cases in the Federal District Court for the Middle District of Florida.