Learning About Mediation from Being a Participant

I had a unique mediation opportunity to last week: I was a participant (defense attorney) in a mediation. Here are eight things I learned about mediation:

1. It can be useful for the mediator to meet with the attorneys just before the start of the mediation. This gave the mediator an opportunity to hear each attorney’s argument, and hoped-for outcome. As a mediator, I may meet with the attorneys together, apart from their clients, at some point during the mediation, but I rarely meet together with all attorneys prior to the mediation. In this case, I had never met or spoken with opposing counsel (my discussions had all been with his partner) so it was helpful to meet him beforehand.

2. The mediator’s personal stories can be very helpful. In keeping with neutrality, it’s generally not advisable for the mediator to describe personal experiences related to the topics at hand, so I rarely do when I mediate. But our mediator shared a couple family stories, as well as a couple litigation stories, that were timely and on-point. Since the parties in our case were strangers, this humanized the process for all of us.

3. It made me anxious when the mediator began asking questions of my client in joint session. As a mediator, I usually ask the attorney’s permission before questioning their client, and our mediator did too—but I was still on edge, worried that my client would inadvertently undermine our mediation strategy, or cave in altogether. My take-away from this as a mediator is to be cautious about going too far with client questions during the joint session, be certain that these questions need to be answered in joint session rather than in caucus, and to be on high alert for cues from the attorney regarding the limit.

4. As an attorney, I really wanted to hear our mediator’s opinion about the strength of our case, since he’s a seasoned litigator. In the facilitative model of mediation, the mediator eschews any party attempts to get the mediator to share a personal opinion regarding the outcome of the mediation. In this case, I knew that our mediator had more experience in the subject-matter of our case than I did, and I truly wanted to hear his opinion – and he was not shy in offering it, which I found affirming.

5. The mediator needs to help each side negotiate. I already know this, but I sensed it in a different way as an advocate. In caucus, I asked the mediator to see if he could get the plaintiff to lower their price, but I didn’t provide a reason for them to do so. The mediator came back with a lower figure, tied to an apology from the defendant. I agreed, but I was also chagrined, because I’m a big proponent of apology in mediation—I train and teach about it all the time, and yet here it never crossed my mind!

6. Commend people for their good work. When the mediator commended the attorneys at the end of the mediation, for arguing strongly but never personally, it felt good. I like to commend everyone at the end of the mediation for cooperating and treating one another well, but I don’t always remember; now that I know how good it feels to hear that, I will make an extra effort to include this in my mediations.

7. The mediator needs to remember stuff the attorneys forget. None of us thought to talk about what should happen with the lawsuit because we were focused on other details of the agreement. It was only after the agreement was signed and copied that opposing counsel mentioned the lawsuit. I wish the mediator had raised this topic while we were negotiating other agreement terms.

8. Take the time necessary to draft a good agreement. We were rushed at the end, due to an agreed-to deadline, so the mediator drafted the agreement while the attorneys were still negotiating the details. The mediator included a provision obligating my client to do something that we had discussed, but that is legally unenforceable. I chose not to make an issue of it, which would have delayed the process, but in retrospect I should’ve spoken up.

What made this mediation especially interesting is that I “trained” this mediator, meaning that he went through our 40-hour course, even though he already knew how to mediate. He definitely did not follow our training model–and he did a great job.

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