Although mediation can be defined in many different ways, Bradley Cummings refers to it as a “voluntary and confidential process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties.” The goal of mediation is to come up with a mutually beneficial resolution. Cummings, an experienced mediator who has mediated over 2,000 employment cases, has seen the good, the bad, and the ugly when it comes to the process. In his 20 years of experience, Cummings believes he has seen a pattern of mistakes that are made before and during the mediation process. Listed below are some of the tips Cummings provides for successful mediation and ways to avoid making mistakes during the process.
Choose the Right Time to Mediate
Many lawyers and legal experts are conflicted on when parties should begin mediation. While some say it should begin once discovery is completed, others argue the best time is after summary judgment motions. Cummings, although he believes there are advantages and disadvantages to whatever time you pick, says the best time to mediate is after some initial discovery has been completed. This allows the parties to better assess their risks and rewards, as well as stop them from becoming too involved in litigation.
Choose the Right Mediator
We have posted previously about the three types of mediators: facilitative, evaluative and transformative. All three types of mediators have their advantages and disadvantages depending on the case and clients. Parties feel like they are in more control with facilitative and transformative mediators, but this type of mediation generally seems to take the most amount of time. Evaluative mediators are very good at getting difficult cases settled, but parties may not have the same level of control in this type of mediation. The best way to pick a mediator, according to Cummings, is hiring an experienced mediator who has dealt with similar cases in the past. Talking to the mediator about his or her style before starting the process is also a good idea.
Know your Case
Both the attorneys and their clients must come to mediation prepared with the facts of their case. At a minimum, both parties should be aware of the facts, legal issues, and potential defenses to claims the other party will make. Cummings has seen many cases where parties said they were not ready to resolve the case simply because they did not have enough information. Therefore, there is no substitute for preparedness when it comes to mediation.
The cornerstone of mediation is that parties will talk to each other and come up with a mutually beneficial solution. However, this will not be possible if you are not flexible in your expectations. As mentioned in a previous blog post, you must avoid entering meditation with a winner-loser viewpoint. Instead, you should go to mediation with reasonable expectations and keep an open mind when possible solutions are being discussed. Hearing the other parties and learning about the risks involved with certain solutions should help you becoming more flexible, which will in turn lead to more successful mediation.
Send the Right Corporate Representative
Our business clients know that they must send a representative with “full settlement authority” to attend meditation. However, sending someone with authority does not necessarily mean you are sending the right corporate representative. Since Cummings mostly mediates employment disputes, he says that sending any individual with a personal investment in the employment action at issue is a huge mistake because this person will only justify their position, not come to a resolution. Ideally, a corporation would send two people, one from the “business side” and one from the someone with legal/risk management side. Cummings also advises sending someone who has “final decision-making authority, instead of someone who has full settlement authority. A representative always has to consult with the boss before making a decision, so having the boss there would be the best chance at mediation.
We hope the tips provided by Bradley Cummings lead to more successful mediation for our clients.
Source referenced: Lexology