Tips for successful mediation (Part II)

Part II (Part I published in the Spring Issue)

Try to reach an agreement with the other side and their counsel without the case collapsing. A good place to start is a mutually agreed roadmap of time and cost to bring the case to a final non-appealable conclusion and the ultimate discussion of collection of the judgment. If you are the defendant, commence your offers in instalments over time as opposed to lump sums as this subliminally arouses temporal anxiety on the other side. However, always be prepared to pay as much as possible in a discounted lump sum and the cost of mediation after the negotiations.

As a counsellor, your role is to never give up and to continue to find solutions. If the parties are at loggerheads, offer to meet with the other side’s counsel; if that is not successful, invite the opposing counsel to meet with you privately. If this is still not successful, invite the mediator to a caucus. If you are still not successful, then encourage a well-rehearsed client to meet with the other side without attorneys and then begin the process of attorneys meeting with one another again and with the mediator. Continue to change up the process until a conclusion is reached and if still unsuccessful, ask the mediator to call a joint session to summarise the mutual ground and the range of damages. Always recognise that the mediation process can continue between the parties if not concluded at the end of your session.

As a final thought, always be conscious of your client’s and your own nonverbal signs. Smile, keep your arms relaxed and unfolded, be firm in your posture and refrain from using the word ‘never’. Maintain a ‘yes’ or a ‘yes, but …’ attitude.

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