Using mediation effectively as a tool to resolve conflict is more challenging than many think. Preparing for a mediation is not the same as preparing for a trial. The skills required to be a first-rate negotiator are, in many ways, different than those of a successful litigator. And just as there are numerous ways that a trial can quickly come off the rails, there are just as many ways that a mediation can start on a downhill slide to impasse.
What follows is not an exhaustive list of mediation mistakes. Instead, these are simply 10 blunders that can sabotage a mediation that I have seen made over and over again.
Spend little or no time with your client before the mediation explaining how he or she can best participate
Decide on your opening negotiating position AFTER the opposing lawyer gives his opening remarks
Increase or decrease your last pre-mediation proposal without a plausible reason, only that it is being done as retribution for not accepting it when it was made
Use your opportunity to talk directly to the other side to predict a certain and disastrous outcome if he or she persists in moving ahead with litigation
Make an initial offer that you and everyone else in the room knows is preposterous
Insist that the person making the preposterous initial offer make a “reasonable” offer before you will begin negotiating
In a case in which your BATNA (best alternative to negotiated agreement) is a jury trial, have the decision maker appear by phone so as to miss the opportunity to actually see and talk to the other party
Avoid any opportunity to build rapport by refusing to engage in friendly small talk with the other party
When given the chance, decline to ask good questions that might encourage detailed responses and create the basis for progress
Fail to anticipate having to provide details for your proposals and leave the supporting documents at your office
Keep this in mind: the mediator is there to help you negotiate an outcome that your client and the other side can live with. Choosing an experienced mediator who not only knows best mediation practices, but also what not to do can mean the difference between failure or success.