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Party satisfaction with mediation - What are your thoughts?

What might the legal profession do (or not do) to increase party satisfaction with mediation...whether or not parties reach settlement?

Please provide your thoughts/comments below.

Thank you to Harold Coleman of AAA Mediation.org for this week's question.

Comments (12)

A good mediator will create an environment that is conducive for settlement. Maintaining a calm demeanor and focusing on what each party has to say is a good start. People want to be respected and, in a settlement setting, they want to be heard. A mediator should also show no bias and control the room so the matter stays on a productive course.

Deanne Wilson:

The response to this question depends on what the parties expect from the process. Do they want a facilitative approach or an evaluative approach or a combination of the two? Do they want to be a witness to their counsel fully informing the other side of their position or do they believe that would be a waste of time because it has already been done? Where do they anticipate they will be at the end of the day? Does the client realize that mediation is more than simply an opportunity for the client to "have her day in court"? The primary purpose is the accomplishment of a settlement that both parties can accept as fair, reasonable and equitable...

If those questions are fully laid out by counsel to the client, the client's responses fully discussed, outlined and communicated to the mediator, the mediator can be more fully informed as to the client's expectations. The mediator then has the opportunity to more effectively lay out a strategy to lead the parties to resolution in a cost-effective matter that meets their expectations.

The legal profession can affirmatively promote mediation, not just as an alternative to litigation but as a better alternative. Even when a party achieves less from mediation or gives more than it ideally would have obtained in a successful litigation -- which is always the case -- counsel should remind their client that the benefits obtained include not just the settlement agreement (whatever it is) but also the avoidance of the cost, disruption and uncertainty that is inescapable in having continued its lawsuit. Over time, individuals and business will come to see that mediation is a better alternative to litigation even when they deeply believe that they are "in the right" because an impartial decision-maker might not see things their way.

Joe Cox:

Parties want to know if an arbitrator has the authority to order mediation. There is nothing in the AAA rules that I am aware that allows for this. So, I believe AAA should empower arbitrators with the authority to not just encourage mediation but to be able to order. A simple, clear rule on this would be great.


Edwin H. Stern:

In my experience the key to a successful mediation, or at least to satisfaction in mediation process, is a good preliminary telephone conference or conferences seeking the parties’ input with respect to how to proceed. Indicating a willingness to be flexible in response to the parties’ input is appreciated. Discussions on issues such as whether the parties should make an opening statement to the other and how to proceed, and talking to both parties for input about what to say, or how to say it, before the caucuses begin have all proved beneficial in the sense that the parties believe that they are having meaningful input in terms of an approach to settlement and the mediation process.

Dale Crawford:

The question cannot be properly answered because the parties will never be satisfied unless the case is resolved through the mediation process. How can they. They have taken their time and especially their money in an expectation of a resolution .No mediator or AAA for that matter should ever try to satisfy the parties with anything other than a resolution.

Richard Lutringer:

Counsel having a contingent fee arrangement have an incentive to encourage their clients to agree to mediation. Counsel billing on an hourly basis should also have an incentive by offering their clients a modified fee arrangement — if the matter settles through mediation ( or even perhaps otherwise settles at a very early stage due to counsel’s efforts), prior to the expenditure of a certain budgeted amount for discovery and motion practice, counsel fees would be increased by an agreed factor. Ethical rules would have to be followed, but the result to parties and counsel would be higher realization and less risk.

Lawyers should prepare more for mediation and should work with clients so that clients enter the mediation process understanding what mediation is and is not. I see surprised clients regularly in mediation who learn for the first time the weaknesses in their claims or defenses. I also see clients who have not been helped to understand the hard work that settlement requires and the available options to achieve settlement. Lawyers come to mediation without any preparation for the process, especially when it is court-ordered or condition precedent driven. Mediation is not a magic wand. It is one tool in a bag of tools that requires counsel and parties to understand why alternative resolution is preferable to litigation and appeals.

Anonymous:

Mediation advocacy is a skill that differs from litigation advocacy. Much continuing legal education on developing the latter is available, but relatively little for teaching the former, despite the fact the vast majority of cases in court and in arbitration are resolved by compromise settlement prior to trial. May lawyers believe they can "wing it" through mediation without much preparation by the lawyer, either of himself/herself or the client.

Mediation is already popular. But fixing this omission would improve the quality of representation and therefore also the level of client satisfaction.

Anonymous:

Party satisfaction starts at home. I am consistently disappointed by the number of lawyers that come to mediation unprepared. They don't have a complete picture of their case and can't answer the most basic questions about the amount of medical bills or lost wages or; in commercial cases their economic loss. The parties should be 'trial ready' at mediation. As for the mediator, be patient; listen to the client tell their story; be sympathetic; know the judge and how he or she approaches trial, ask questions about how the jury will feel about certain aspects of the case; don't charge an additional amount if the mediation runs past 5pm, ; let the parties know you are fully vested in resolving their dispute; provide a mediator's proposal;,always follow up with the parties within a week about the mediation about the proposal...keep the talks going.

Charles Shaffer:

The question is not what can the Mediator do, but what can the Legal Profession do to increase party satisfaction. What the Legal Profession can do is educate their clients as to what Mediation is and what to expect from the mediation

scott link:

the mediator should become educated about the facts and law of the case. This may involve reading the pleadings and Motions on file with the Court. Further, the mediator should research the law if the parties fail to produce informative responses to the mediation questionnaire. Admonish the parties beforehand to be trial ready prior to mediation.In private caucus, prior to the joint session, ask the attorneys if you have permission to ask the party to talk about their case. Never say 'its a business decision to the parties". Its a decision based on the facts, law, and the uncertainty of juries and judge and the 'likability' of the witnesses, and the desire to have closure.. Know the propensities of the judge. The mediator should be calm and caring and ask questions that promotes discussing the weak points of the case. Have the parties conduct a 'full opening ' in the joint session. Don't let a party walk out. Discourage 'making a statement' by their offer or demand. Don't declare an impasse. Continue working with the parties if the case isn't resolved during the mediation session. Remain calm and make the parties feel welcomed and comfortable.

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This page contains a single entry from the blog posted on April 28, 2019 10:27 AM.

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