Mediator and Lawyer Karen Stott, of ADR & Mediation Services, discusses what the respective parties can do in a mediation to ensure they “get it right”. One barrier to cases settling is an overly adversarial approach taken from the outset, which is difficult to come back from, she writes. Karen recently gave a presentation on this topic for Legalwise Seminars. 
As a Mediator, here are my observations regarding why various matters do and don’t settle:
- One party not having prepared the case properly / asking for items that haven’t been properly particularised or established on the evidence / assuming or expecting that the other side will accept the issue as though it were already established – ie expectations not being managed.
- A Plaintiff with “nothing to lose”; often when legal costs & statutory paybacks have become a barrier to settlement.
- Lawyers “guarding” their clients at mediation and not allowing them to communicate (& don’t communicate with me beforehand either).
- An overly adversarial approach taken from the outset, which is difficult to come back from.
Conversely, where matters settle, they typically have the following features:
- Both parties have something to risk in proceeding.
- Both parties have a genuine desire to settle.
- There is good communication – (ie good client rapport; good communication between opposing party representatives; and the party representatives have been open to communicating with me in my Mediator role).
- There is empathy demonstrated to the aggrieved Plaintiff – even if just in respectful behavior.
- There is professional courtesy on the day and not an atmosphere of hostility.
Suggestions for Plaintiff Lawyers on getting it right:
- Manage your client’s expectations right from the start of the matter.
- Give a comprehensive written advice well in advance of the mediation.
Suggestions for Defendant Lawyers on getting it right:
- Make sure a person with full authority to provide instructions on settlement, is in attendance.
All Parties:
- Get the brief to the mediator in the timeframe requested and Be Responsive to the mediator when they contact you to discuss the issues.
- Prepare yourself and your client properly, for mediation.
- The Position Paper – can be succinct or lengthy as the case permits but please consider using these all important words…(to the effect that) your client is attending in the spirit of compromise and that they wish to settle the case!
- The Joint Opening: Give careful consideration to WHO speaks, the reason WHY, and WHAT they say. This can be a real game changer and literally sets the tone for the attitude and negotiations that lie ahead.
- Be mindful of the emotional state of the parties themselves in this context and how you conduct yourselves as legal representatives on each side. Did you know that the key drivers of human behavior are:
- Status
- Certainty
- Autonomy
- Familiarity / a sense of belonging
- Fairness
Not only does that explain a lot of litigation in the first place, but now that we’re there: be mindful of these issues in how every participant at mediation behaves, speaks and engages throughout the entire process (meet and greet, joint opening, discussions & negotiations). Being emotionally intelligent, empathic and respectful can make all the difference between negotiating a great result – or not.
These tips may all sound very basic. But it can be easy to disregard some of them. Abiding them all, however, will ensure the most effective result.
Mediator Karen Stott is a lawyer with 20 years of litigation experience, and a nationally accredited mediator. She has practised in a wide range of areas, particularly health law and medical negligence, professional and government liability, personal injury and workplace relations. Having represented both plaintiffs and defendants, Karen has a unique appreciation of the parties’ different positions in terms of principles, values, bargaining styles, fears, concerns, and desired outcomes. Karen has a strong belief in the effective use of early alternative dispute resolution methods to achieve results which: produce a cost effective outcome for all concerned; enable an aggrieved party to be heard and validated; enable the conveyance of an apology or expression of regret and in turn, the validation of emotions and repair of relationships; enable the parties to communicate effectively and address the real issues, which may lead to a workable and truly successful resolution. Contact Karen at Karen@ADRmediation.com.au or via LinkedIn
