ADR CORNER
I Just Had the Best Mediation ….
KATHRYN MCHALE
This is what all parties should say after they have mediated a case . But they don ’ t , why not ? You have heard that the best settlement or mediation is when everyone leaves unhappy because that means they all gave up something . How can you have the best mediation ?
The decision makers must participate . With most , if not all , mediations by Zoom these days , the decision makers should be participating as they can be available by phone , if not in person on Zoom . The adjuster who has the authority is listening to the mediation and can then make the decision on whether to settle or not . He or she is given the real time opportunity to gain a realistic understanding of the dispute .
The choice of a mediator – Why do you choose a mediator ? Is it because of past successes ? Is it because of his or her expertise in the subject ? You should pick a good listener , a people person who can handle all types of personalities , a deal maker , and someone who can handle the technology challenges we face with Zoom mediations .
Build a Deal – Successful mediations are the ones where a significant expenditure of effort is put forth by both parties before the mediation occurs of laying the framework of the necessary facts , strengths and weaknesses , analyzing critical legal issues , and finding options that both parties can live with in a settlement . The goal is a resolution . You must be concerned with your own interests and also take into account the interests of the opposing party . From this , a deal can be made .
Important evidence should be present – In our Zoom world , this means that the important documents or evidence need to be available and shareable during the mediation presentation and caucuses . Unless it is an early mediation , you should be prepared to put your cards on the table and show some of your hand , if not all of it . The attorneys know what the strengths and weaknesses of their case are ; but the parties , adjusters and mediator do not necessarily know them in detail . We all listen to the same presentation , but we may hear different facts that affect us more than someone else . If there is something that is crucial to how a case is valued , it should be part of the mediation process .
Be realistic – When demands and offers have been made pre-mediation , that should be a starting point for where the mediation begins . There are times when different demand and offers are made which are lower than what was previously made ; but they should be the rarity and based upon something that has transpired in the case since the demand or offer was made . If frustration starts at the beginning , it is hard to get back on track and achieve the goal of a settlement .
Be patient . Some things take time – We live in a timed world . Most mediations take time too . When you set aside two hours for a mediation , that may not be enough time . Mediations involve change . Change involves time to change . A party in a lawsuit is entrenched in his / her position and believes that he / she is right in those beliefs . Each side may or may not understand its own interests and those of the other party , and each may have unrealistic expectations . It takes time to address these issues , and it takes time for people to change their minds . Your mediator should be patient too to help facilitate the change in positions .
Problem Solving – A resolution or signed settlement agreement is the ultimate goal of every mediation . How do you get there ? Problem solving involves creativity and an open mind . There is a lot of brain power at the mediation ; find ways to use it . Be open to ideas generated from the mediator as to how you can close the gap to a settlement . Let the mediator help reconcile the interests as he / she hears both sides and can utilize that information to help facilitate a resolution .
What if we don ’ t settle ? – Sometimes the parties just need a little more time to think about what they heard , saw or learned at the mediation . You should know more about your case after a mediation . Their strength is maybe not as strong as they
PBCBA BAR BULLETIN 7 thought . The other party ’ s weakness was not really a weakness , legally . The Motion for Summary Judgment was not as scary as they thought once all the evidence was put forth . Most mediators are willing to continue to help resolve the issues once the parties have left mediation . Let them . You selected the mediator to help you get across the finish line and when you think you can get there with just a little more communication let the process continue even after you have left that Zoom call .
So , ask yourself after a mediation : did I achieve my client ’ s goals ? Did we use our time effectively ? Were we realistic ? Were we patient ? I just had the best mediation .
Kathy McHale is a Florida Bar board certified civil trial attorney . She specializes in employment and construction litigation . Kathy is a Florida Supreme Court certified civil and family law mediator , a member of the American Arbitration Association ’ s roster of arbitrators and mediators ( Employment and Construction panels ), a Florida Supreme Court Qualified Arbitrator and a FINRA-Approved arbitrator . Ms . McHale serves on the Florida Bar Civil Trial Law Certification Committee . She is two term Past President of the Martin Chapter of the Florida Association for Women Lawyers . Kathy can be reached at ( 561 ) 379-5030 or Kathy @ KMcHaleLaw . com or by visiting www . KMcHaleLaw . com .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /