Mediators Get More and Better Settlements When They Don’t Take Notes
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Let lawyers know you “get it” before the mediation day, on the phone
The emerging best practice among mediators is that proper preparation includes talking to lawyers on the phone after the lawyers have submitted their mediation statements or briefs, and before the day of the mediation. In these conversations, mediators can show lawyers that they get it, with zero notes.
Generally speaking, these conversations proceed best when the mediator asks the lawyer open-ended questions, such as:
- What more do I need to know to be most helpful to you?
- What are the challenges we face?
- What are your expectations of me?
- Are there any mediation process issues we should discuss?
- Tell me about the personalities of the people involved?
In discussing the lawyer’s answers to these questions, there’s plenty of opportunity for a mediator to show that they get it. There’s no need to take notes. The legal and factual issues in the mediation statement or brief are already in writing. The mediator is just refining and amplifying on those issues. Most importantly, the mediator exercises judgment to figure out what’s missing, what it is each side doesn’t get about the other’s views, and how each side can help the other fill those gaps. This leads to a potential agenda for a joint session which the mediator designs to be brief, informative, and calm – in which lawyers are therefore more likely to participate – and which can form the foundation for the parties negotiating their way more efficiently to a more satisfying deal.
Let parties know you “get it” when the mediation day begins, in private
The emerging best practice among mediators also includes talking privately to each side when they first ride the elevator, before any sort of joint session is even attempted. When a mediator takes the time to establish rapport and chemistry, and thereby credibility, with each party at the beginning of the day – to show each party that the mediator gets it – the mediator can play a far more valuable role later in the day, helping the lawyer serve the client’s interests by persuading the client to pay a little more or take a little less, to get all of the benefits of finality that settlement provides.
To gain that credibility, basic questions usually get the conversation going. To the lawyer, there’s the familiar, “What else do I need to know to be most helpful to you today?” To the party represented by that lawyer, it generally takes no more than, “Is there anything you would like to add?” Most often, the party will begin with “No,” or silence. Then, the mediator must count to 10, when the party is likely to continue, “Wellllllllll…” Once the party starts explaining, the mediator’s opportunity to listen carefully, show respect, learn and thereby gain credibility, is in full swing.
Here, the practice of taking zero notes starts to prove its true superiority. The stuff the mediator needs to “get”, to oversimplify just a bit, is either emotional content or logical content. With lawyers, it is largely logical content, the facts and the law. With parties, though, it is largely emotional content. They are angry. Sad. Vengeful. Nervous. Excited. Agitated. Alienated. Exhausted. Disgusted. The list goes on. And, critically, this emotional content is completely separate from the logical content of the words. Mediators absorb and respond to this emotional content very poorly by staring down at a yellow pad or a keyboard, transcribing, and reading back to parties what they said.
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