office, boardroom, meeting-1516329.jpg

Mediation Tips for Beginners

When I was a newbie lawyer, I was intimidated by a lot of things, including mediation. Giving an opening and working with experienced opposing counsel and a mediator had me concerned that I would say the wrong thing. I feared being unable to answers my client’s questions during the process or being unhelpful as they dealt with their emotions which tend to run high throughout a mediation. Now, though, as a certified mediator and adjunct professor of a mediation skills class, I have insight for those just starting out. Here are my top five tips for new lawyers attending mediation.

  1. Listen! The most important thing you can do at a mediation is listen to the other side. Hear what they are saying about their case and make notes on the strengths they identify and the concerns of the other party. If you are going to settle, you’ll need to appreciate what is important to the other side and create offers based on those terms. If you are unable to settle, you should at least learn about their case and how they intend to proceed.
  2. Be confident. It’s hard to walk into a mediation with experienced lawyers on the other side and a mediator that may be a retired lawyer or judge. The only way you get better at doing anything is through practice and each time you attend a mediation you are strengthening your negotiation muscles. Be confident in your client and your case so that you do not end up resolving the dispute out of fear or anxiety. Practice your opening statement. Discuss your negotiation plan with a colleague. Do things outside of law that make you feel confident too!
  3. Preparation is key. To be effective at mediation, you need to know the ins and outs of your case. Study the pleadings, discovery, transcripts, and law. Do an accurate assessment of potential outcomes at trial and calculate the best and worst case scenarios for your client. Send a letter summarizing your position to the mediator so that he or she is also prepared to facilitate a settlement that day.
  4. Set expectations. Meet with your client in advance of mediation and be sure expectations are appropriate. No case will settle for the client’s best day in court and it is unrealistic for the client to expect that as a resolution. Be clear with your client about the cost of litigation and trial. Identify potential outcomes that might work for your client and push back if those outcomes are unlikely.
  5. Take care of yourself. The best thing you can do in advance of mediation is be sure you take care of yourself. Get rest. Eat a hearty meal. Exercise. Bring snacks and water to mediation. Mediations can take hours and you will have the hard job of managing your client’s emotions as well as your own. It’s an important job that you can only do well if you prioritize yourself first.

And I’ll end on a reminder – you are not alone! Everyone deals with nerves at some point, if not often, throughout their career and most lawyers/mediators will remember their early days attending mediations too. Be patient as you learn and develop in your career. Seek mentors that will assist in that growth and remind you that it is totally normal to be nervous but that doesn’t mean you’re ineffective. It means you care and that’s what we need in the legal profession.