By Christina Patierno, Esq.
Epstein Patierno, LLP
- Proceed with the right attitude: Your case will not settle on terms that are your opponent’s worst case scenario. That might be your first offer, but don’t expect it to be the result. Come in with an attitude of this mediation being your best opportunity to negotiate a mutually acceptable deal on a day when everyone involved is present and focused on the case. Keep the litigant focused on the issues, not the emotions. What is effective? Strong but gentle advocacy. Artful concession.
- Come prepared: Try to have all disclosures done so everyone is ready to discuss settlement. Map out a strategy. What are your likely first three offers? While you have to be flexible during mediation, this plan will help guide you.
- Be flexible, stay calm and positive: Mediation will have twists and turns, but the unexpected is easier to deal with in mediation than in trial. Don’t give up too early thinking the parties are too far apart. Difficult disparities get resolved in mediation every day. Prepare your client (and model for them) good behavior in mediation — do not disparage the other party or counsel. Do not disparage the mediator. Do not say there is no way we will settle. Continue to proceed with your strategy of making incremental reasonable offers and speak with the mediator about requesting the other side to do the same.
- Be patient: Mediation is a process. You can’t arrive and give your best offer in the first hour and then sit tight and expect the other side to get there. This approach doesn’t work. Most litigants need time to build a rapport with the mediator, get to tell their story and feel heard. As a mediator, successful mediation loosely follows this path: (1) the first quarter of the mediation is an exchange of facts/ideas and case theories; (2) the next half is a negotiation largely centered around exchanges of actual offers with numbers and/or specific points; and (3) the final quarter is negotiating the language in a Memorandum of Understanding.
- Schedule mediation at the right time: Litigants will have a hard time resolving their matter at mediation if it is scheduled without them having a clear understanding of the facts (i.e. full disclosure), receiving expert evaluations (if applicable) and obtaining legal advice. In family law cases, a party needs to have had some time to emotionally process the break-up of the relationship/family before they are ready to be in a mindset to settle the case. While in other family law cases, it is prudent to schedule a mediation very early on to prevent an explosion of emotions created by protracted litigation.
- Get focused attention: Before COVID and the surge of remote dealings, often litigants sat with their attorneys at mediation. Today, sometimes litigants are at home or their office on Zoom. This has created situations where a litigant may try to multi-task with child-care and/or work while mediating. This is not ideal for mediation, particularly in a family law case wherein the case may be about the children and they should not be present. Ensure litigants have scheduled the mediation at a time where they can be focused on the mediation.
- Be willing to offer support for your position: Some litigants approach mediation as a space where they will provide offers and discuss entitlements, but will not provide support (i.e. factual basis or legal theory) for their offer. Those offers are often seen as lacking credibility and lead to frustration in the mediation process ultimately causing a breakdown in mediation and a failed process.
- Set mediation for the right amount of time: Given people need time to build rapport with the mediator, tell their story and feel heard, setting a mediation without adequate time is unlikely going to lead to a successful mediation.
- Ensure the parties have access to key information: Parties in a mediation should anticipate the need to provide documentation in support of their key claims/positions.
- Listen: While mediation is meant as a tool to help resolve disputes, listening can help you discern if this case absolutely needs to be resolved (because you may have a weak position) or it can help you analyze if trial is the best route (you have a strong case and the other side is not providing good offers). Listening well in mediation can help you learn facts regarding the other side’s position, helping you assess the strengths and weaknesses of your case.
As Coach Taylor said in “Friday Night Lights,” “Clear eyes, full hearts, can’t lose.” This was a battle cry for hope and optimism. The same battle cry serves a successful mediation. “Clear eyes”— remain focused on what is important. “Full hearts”— be optimistic and open to the process.
– Tina Patierno is a shareholder and founding partner at Epstein Patierno, LLP. She brings more than three decades of family law and courtroom experience to the firm.