Mediation can be a difficult process for both plaintiff and defendant. This episode, Laura Noble speaks with Steve Dunn, an attorney and certified mediator, who explains how to refresh your approach to mediation and achieve the best possible outcome.
What is mediation?
Mediation is a designated occasion where opposing parties talk about settlement, facilitated by a neutral third party. It is a structured discussion about resolution and is a unique opportunity for both parties to work towards the same goal: settling their dispute.
What is the role of the mediator?
A mediator is a neutral third party with no interest in the outcome of the situation, who guides discussion in a mediation. It is their job to keep the conversation moving and to ensure that both parties take full advantage of the opportunity to settle their case. Mediators are like lawyers, in the sense that they have different styles of operating. They can be actively involved in trying to settle the case, by suggesting ideas and reframing perspectives, or removed from the situation to provide each party ample space to speak.
Who has the advantage in a mediation?
Usually, both sides of a dispute feel the same way: They are doing their best to be reasonable and put the case in a proper range to settle, and the other side is being unreasonable with their demands. In an employment law setting, plaintiff attorneys often go into mediation feeling like they are at a systematic disadvantage. Despite how strongly they believe in their case, the defendant is typically a large company or corporation with control over the money in question and extensive legal resources.
On the other hand, defendants frequently enter mediation feeling equally at the mercy of the plaintiff. While the plaintiff can choose to settle at any time, even if that means lowering their demands, the defense is bound to litigating the case until a decision is made. In employment law, defendants are often restricted by some sort of bureaucracy and approval process. If they end a mediation outside of their pre-approved threshold, they need to be able provide a reasonable explanation as to why they settled at that number.
Is preparation important for mediation?
It is immensely helpful for attorneys to discuss with their client what “winning” looks like, and to set the expectation that mediation is not about “winning.” Rather, the purpose is to compromise on that “winning” scenario in exchange for the certainty that the dispute will be settled on mediation day. The worst possible scenario is when sides have given no prior thought to what damages are recoverable or to how the mediation could realistically resolve.
Depending on your mediator, attorneys may also speak with their mediator in advance to explain the direction of the case from their perspective. Though case briefs can be helpful in learning the context of the case, understanding the personalities involved can inform the mediator on how to guide negotiations. Information such as whose budget money will be coming from and the amount of dollars available may not have anything to do with the case itself, but it will play a big role in determining the settlement.
How do you prepare a “bottom line?”
The core of mediation is compromise through conversation. When parties enter a mediation with a rigid “bottom line,” it becomes a line in the sand that prevents them from meeting in the middle. After all, if both parties’ numbers already aligned, mediation would not be required. The purpose of mediation is to work together to find a mutual agreement beyond both parties’ “bottom lines.”
Steve suggests that parties think about the potential outcome in ranges: the most desirable range in which you’ll absolutely settle, a middle range that will warrant discussion and hard decisions, and the bottom range where you most likely will not settle the case. Mediation often sheds new light to both parties, opening new possibilities. By establishing ranges, you are preparing your client to consider what you learn along the way. Even in that unfavorable range, be ready to discuss. Most cases get resolved with both parties in their bottom range, an agreement just barely acceptable enough for either party.
A mediator’s job is often figuring out what is possible for both parties and, then, giving the parties enough tie to get used to the reality of that outcome. If you tell either party what the outcome will be at 9 o’clock in the morning, both sides would pack up and leave. It is only through the process of conversation and consideration that everyone reaches that decision.
How can attorneys make the most of mediation?
While you can use every other day to win your case, use mediation as a day to focus only on compromise. Everyone in that mediation, including your mediator, is trying to settle the case on that day. Mediation is an attorney’s one and only chance to explain their perspective in a calm, reasonable way to the opposing party. The vast majority of parties come into mediation with the intention of convincing the mediator that they are right, rather than framing their conversation for the opposing party.
Prior to receiving his mediator certification in 2009, Steve practiced employment law in Charlotte, NC for over 20 years. Finding passion in dispute resolution, Steve became a full-time mediator and arbitrator in 2019 with Miles Mediation & Arbitration. You can learn more about Steve on their website.