This article is the second in a series about participating in mediation. This one is aimed mainly at lawyers preparing their clients for mediation, but participants themselves may find it informative to ensure they get the most out of their mediation.

Lawyers involved in more than a few mediations get a sense of when a mediation should settle and when settlement is only a remote chance. Sometimes the parties’ expectations are not far apart, and other times there is a gulf that seems too far to cross.

But sometimes disputes that should settle don’t, and some that no one expects to settle do.

Mediation is a non-determinative dispute resolution process, so it can only succeed if all disputing parties agree. No one imposes a settlement at mediation. Today, I want to talk about something that lawyers need to bear in mind to get the most out of mediation.

Whether your client realises it or not, they want three things from a ‘successful’ mediation.

Procedural needs

First, your client wants an organised, constructive and professional process.

If a party comes to a mediation and observes the mediator acting in a way that implies bias, or if the mediator does not appear to respect confidentiality, or if the mediator otherwise allows the mediation to be haphazard or unprofessional, the chance of a settlement goes down. The chance of a satisfied client vanishes. Mediators deal with this by emphasising structure, confidentiality, and impartiality at every stage.

Psychological and emotional needs

Secondly, your client wants a process that puts them in the right mindset to consider settlement. They have to be genuinely open to the chance. Amongst other things, that means minimising the detrimental effects of anger, disappointment and other negative emotions.

Mediation is stressful. There will almost certainly be times of high emotion. However, simple things such as the mediator’s use of listening and questioning techniques can allow clients to ‘get things off their chest’ and to ‘feel heard’. It can also be enlightening to hear directly how the dispute affects the other party rather than only through the filter of lawyers' letters or written court filings. Once the difficult emotions are confronted, a rational settlement becomes more likely.

Substantive needs

Thirdly, your client wants a substantive outcome – a decisive settlement – to let them move on with life.

In truth, mediation rarely ends with a win-win settlement, although that should always be the goal.

If that is not possible, a settlement offering a party their best reasonable alternative to litigation goes a long way to meeting the substantive need. However, it is important to remember that the possible outcomes in mediation are not limited to those that could be ‘won’ in litigation. Often the best outcomes focus on meeting practical interests rather than vindicating (or compromising) perceived legal rights.

You can help meet your client’s substantive needs by investigating with your client ahead of time what is most important to them. Often, it may be a quick resolution, which litigation is unlikely ever to provide. In other cases, it will be preserving their reputation or relationships.

Applying the principles

The key thing to understand is that a successful mediation does not only require that reasonable terms of settlement are offered. If any of your client’s procedural, psychological or substantive needs are not met, the chances of a successful resolution of the dispute go down. Parties can and do reject offers they would otherwise accept when they feel that a process is unfair or they have not had the chance to get their point across.

Of course, this applies to all parties in the mediation. It is just as important to understand that the other party has these same general needs. If you do understand that, you can increase your client’s chance of success by making sure that the other party also perceives that their procedural, psychological and substantive needs are met.

Lawyers and their clients can sometimes sabotage their own settlement chances by doing something that will make the other party feel like the process is unfair. A classic error is surprising the other party with a new expert report at the mediation or on the eve of mediation. The other party feels ambushed. In that psychological setting, the other party can often feel unable to settle.

Conversely, if you can ensure that the mediation process is (and appears) fair, professional and confidential, the other party may be more open to accepting your client’s offer.

In the next article in this series, I will discuss what participants in a mediation fear the most and what to do about them.

Preparing for mediation series