By: Kathryn McHale 
Published: June 2021

This is what all parties should say after they have mediated a case.  But they don’t, why not?   You have heard that the best settlement or mediation is when everyone leaves unhappy because that means they all gave up something.   How can you have the best mediation?

The decision-makers must participate.   With most, if not all, mediations by Zoom these days, the decision-makers should be participating as they can be available by phone, if not in person on Zoom.   The adjuster who has the authority is listening to the mediation and can then make the decision on whether to settle or not.   He or she is given the real-time opportunity to gain a realistic understanding of the dispute.

The choice of a mediator – Why do you choose a mediator?   Is it because of past successes?  Is it because of his or her expertise in the subject?  You should pick a good listener, a people person who can handle all types of personalities, a deal maker, and someone who can handle the technology challenges we face with Zoom mediations.

Build a Deal – Successful mediations are the ones where a significant expenditure of effort is put forth by both parties before the mediation occurs of laying the framework of the necessary facts, strengths, and weaknesses, analyzing critical legal issues, and finding options that both parties can live within a settlement. The goal is a resolution.  You must be concerned with your own interests and also take into account the interests of the opposing party.  From this, a deal can be made.

Important evidence should be present – In our Zoom world, this means that the important documents or evidence need to be available and shareable during the mediation presentation and caucuses.   Unless it is an early mediation, you should be prepared to put your cards on the table and show some of your hand, if not all of it.    The attorneys know what the strengths and weaknesses of their case are; but the parties, adjusters, and mediators do not necessarily know them in detail.   We all listen to the same presentation, but we may hear different facts that affect us more than someone else.   If there is something that is crucial to how a case is valued, it should be part of the mediation process.

Be realistic – When demands and offers have been made pre-mediation, that should be a starting point for where the mediation begins.   There are times when different demands and offers are made which are lower than what was previously made; but they should be the rarity and based upon something that has transpired in the case since the demand or offer was made.   If frustration starts at the beginning, it is hard to get back on track and achieve the goal of a settlement.

Be patient. Some things take time – We live in a timed world.    Most mediations take time too. When you set aside two hours for mediation, that may not be enough time.   Mediations involve change.  Change involves time to change.  A party in a lawsuit is entrenched in his/her position and believes that he/she is right in those beliefs.   Each side may or may not understand its own interests and those of the other party, and each may have unrealistic expectations.   It takes time to address these issues, and it takes time for people to change their minds. Your mediator should be patient too to help facilitate the change in positions.

Problem Solving – A resolution or signed settlement agreement is the ultimate goal of every mediation.   How do you get there?  Problem-solving involves creativity and an open mind.   There is a lot of brainpower at the mediation; find ways to use it.   Be open to ideas generated from the mediator as to how you can close the gap to a settlement.   Let the mediator help reconcile the interests as he/she hears both sides and can utilize that information to help facilitate a resolution.

What if we don’t settle? – Sometimes the parties just need a little more time to think about what they heard, saw or learned at the mediation.   You should know more about your case after a mediation.   Their strength is maybe not as strong as they thought.   The other party’s weakness was not really a weakness, legally.  The Motion for Summary Judgment was not as scary as they thought once all the evidence was put forth.  Most mediators are willing to continue to help resolve the issues once the parties have left mediation.   Let them.  You selected the mediator to help you get across the finish line and when you think you can get there with just a little more communication let the process continue even after you have left that Zoom call.

So, ask yourself after a mediation: did I achieve my client’s goals?  Did we use our time effectively?  Were we realistic?  Were we patient?  I just had the best mediation.

Kathy McHale is a Florida Bar board-certified civil trial attorney.  She specializes in employment and construction litigation.  Kathy is a Florida Supreme Court certified civil and family law mediator, a member of the American Arbitration Association’s roster of arbitrators and mediators (Employment and Construction panels), a Florida Supreme Court Qualified Arbitrator and a FINRA-Approved arbitrator.  Ms. McHale serves on the Florida Bar Civil Trial Law Certification Committee.  She is two-term Past President of the Martin Chapter of the Florida Association for Women Lawyers.  Kathy can be reached at (561) 379-5030 or [email protected] or by visiting www.KMcHaleLaw.com.

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/