In Mediation, One Size Does Not Fit All: How to Customize Your Mediation

Published: April 2016
By: Michael D. Mopsick

Imagine yourself in Bloomingdale’s, looking at a rack of designer suits, on sale today for only $500, but they’re non-returnable.  The salesperson assures you that these new suits are “one size fits all”.  Just pick out the color, and you’re done.  You’re skeptical, but this is a reputable store and you’re in a hurry, so you buy one.  You take it home and put it on, and your 40-short body is now swimming in 48-long fabric.  Ridiculous, right?   You wouldn’t buy a suit that way.  Suits need to be customized, tailored to fit.  So do mediations.  So why would you spend your client’s money on the whole mediation process without ensuring that what you’re buying is going to fit your case and the particular needs of your clients?

How can your mediation be customized?  Start with choosing the right mediator.  Here are some examples of the choices you have.  If you have a construction defect case, would you choose a mediator who specializes in personal injury cases, because he’s cheap and available?  Probably not.  But if the loss is covered by insurance, and the PI mediator has experience in dealing with adjustors, maybe you would.  If your case is about a trustee’s malfeasance that might be a breach of fiduciary duty, would you hire a family law mediator with no experience in trust litigation?  Maybe not, but what if the mediator is known for being smart, a quick study, and for developing rapport with elderly parties like your client who come to the mediation feeling betrayed by their children?

Undoubtedly, there are some types of cases that require subject matter expertise.  Mediators in securities fraud and stockbroker malfeasance cases, complex business relationship issues, and complex marital dissolution cases, for example, probably should be chosen primarily for their practice expertise and experience.  But it could be a good idea to cross practice lines and choose a mediator for his or her personality and people skills if your case, or the parties, warrant it.  You can choose a mediator whose personality will engender empathy in your client, or who will not be so abrasive that your client will be offended by his manner.  A “tough” mediator who will “talk sense” into your client, or the other side, is not going to be effective if the personalities don’t warrant that kind of approach.  Selecting the right mediator is critical to the process of customizing your mediation.

Once the mediator is chosen, the simplest and most direct way to customize your mediation is to educate your mediator. Schedule a confidential pre-mediation conference or phone call with the mediator; don’t wait for the caucuses to begin the process.  By the time you reach mediation, you should well know your client’s personality and what kind of approach would work best with her. Let the mediator know about it in advance. Learn from your client what her real interests are in the case. Tell the mediator what your client really wants from the case, even if it’s not something the Court could grant based on the pleadings, and encourage the mediator to think outside the box to try to get it for you.  Give the mediator a confidential mediation statement, in advance of the mediation conference, that includes not just the pleadings and the client’s financial settlement position, but also some of the background that provides insight into what is driving the dispute. Give the mediator a hook to hang a settlement on.

Finally, do not minimize the importance of an atmosphere of civility in the mediation.  Civility is at the heart of the mediation process.  It allows for listening instead of just reacting.  It keeps submerged the emotional impediments to the focus on solutions. All of your efforts to tailor the mediation to suit the particular needs of your client and the circumstances of the case will be wasted unless the inherent hostility of the litigation is kept in check. Do not skip the opportunity to make an opening statement, and use it to set the tone.  Listen to what the other side is saying for clues as to what it will take to get the case settled.  Keep the “we will bury you” rhetoric out of your opening.  Talk directly to the opposing litigants, and focus not on why they will lose, but on why the case should be settled.

You have the ability to make your client’s mediation a custom fit.  Make it a worthwhile purchase, not just a bargain.

Michael D. Mopsick is Of Counsel to Shapiro, Blasi, Wasserman & Hermann  in Boca Raton, 561-477-7800.  He is a Florida Supreme Court Certified Circuit Civil Mediator and is a member of the Palm Beach County Bar Association’s Alternative Dispute Resolution Committee.