What should you expect from your mediator?
Have you ever left a mediation and heard a client say, “the mediator did not get our case”? Maybe the client felt that the mediator “did not fight for me” or the mediator “did not support our position”?
Clients sometimes view mediation as an opportunity to present their case to a third party, expecting the mediator to make a judgment about the merits of the case and to persuade the other side to settle.
But, of course, there are always at least two sides. And a mediator is a “neutral,” with no interest in the outcome of the dispute or bias against anyone involved. Despite these obvious observations, mediating parties often expect the neutral to take sides. How should you and your client approach mediation with a skilled mediator? What should you expect?
With the submission (and exchange) of succinct but comprehensive mediation briefs, you should expect your mediator to understand the key facts of the case and the law that applies to it. With that understanding, your mediator should be able to discuss the strengths and weaknesses of the case. In other words, the mediator’s job is first to understand—not to endorse or decide.
You should expect your mediator to focus on the value of certainty while exploring the range of outcome risks and transactional costs that may be faced in continued litigation. And rest assured, your mediator is doing the same thing with the other side.
You should expect your mediator to emphasize the future. Of course, almost all mediations require sufficient time to explore the parties’ past conduct—including the legal implications that arise from it and the personal connections that individuals may attach to it. In some cases, that process can take a lot of time. But at some point, decisions over which a litigating party has control—and those that matter most—are about what the party wants the future to look like.
There may be lots for you to do in order to prepare for an upcoming mediation. But among those, heading into a mediation with a client that understands what to expect will improve the experience. In the final analysis, empowering a client to consider possible litigation outcomes, to weigh risks against certainty, and to take an active role in crafting a post-litigation future provides the best chance of a successful mediation.
