Every successful negotiation requires that you have a sound strategy. In this article I will explain the steps that I believe you should follow when developing a mediation strategy.
But to lay the groundwork for my explanation I first want to discuss the characteristics of a good mediation advocate. As a mediator I have had the opportunity to observe many excellent attorneys who took a strategic approach to the process. All of them shared these same characteristics.
Preparedness. Just as in trial work, preparation is the key. It is essential that you bring with you all of the ammunition that you can muster in order to persuade the other side. Having a good command of both the facts and the law will demonstrate that you are negotiating from a position of strength. It should also make your client feel confident that he or she is positioned to get the best available settlement.
Openness and Candor. Parties will settle cases when they feel that they have sufficient information to evaluate their prospects in litigation. Some of this information usually needs to come from the other side. Mediation presents an opportunity to have a forthright exchange of information so that no one feels that they are being left in the dark. Withholding information is generally counter-productive and may cause the other side to suspect weakness in your case.
Patience. I have been involved in many cases, both as attorney and as mediator, which required long hours, more than one session, or extensive follow up work on the telephone. At some point it can be tempting to give up instead of staying focused on the objective. You must resist the temptation to rush the process.
Willingness to Compromise. This attribute is the most important of all. No mediation should ever be undertaken unless both the lawyer and the client are prepared to make a reasonable compromise. Participants must realize that almost every lawsuit involves risk. The party who is determined to “win” is usually wasting everyone’s time.
By Michael P. Carbone