Tips for Increasing the Likelihood of a Successful Mediation Conference
In Florida’s Fourth Judicial Circuit, subject to certain exceptions or exclusions, the Court, as provided in Fla. R. Civ. P. 1.720(j), will appoint a qualified mediator, and will order the parties to attend and participate in mediation prior to trial. Mediation is one of several alternative dispute resolution (“ADR”) procedures utilized by courts, attorneys, and litigants as a method of resolving civil disputes. While the focus of this blog is mediation, future blogs will contain a discussion of some of the other ADR procedures available for use in resolving the growing number of civil lawsuits. The mediation process has proven to be more than moderately effective in resolving civil disputes and relieving congested court dockets. Mediation has also helped to reduce the rising costs associated with civil litigation. See Fourth Judicial Circuit Administrative Order No. 2013-13. As a result, mediation has become commonplace in the majority of civil disputes filed in the Fourth Circuit as well as other Circuits around the State.
In a traditional mediation or facilitative mediation, the mediator will neither make recommendations for the participants nor impose a binding decision upon them. Instead, the mediator will facilitate constructive communication between the parties with the goal of promoting settlement of their dispute. Constructive communication preserves the parties’ relationship by promoting empathetic, active listening, avoiding personal attacks, and focusing on the issues currently at hand as opposed to dwelling on past hurts or wrongs. Getting the parties to engage in a robust, free flowing, and non-hostile exchange of information during mediation can drastically increase the parties’ chances of successfully resolving their dispute.
Although sometimes deprioritized, client preparation is a key component to a successful mediation conference. As Alexander Graham Bell so aptly noted, “[b]efore anything else, preparation is the key to success.” Preparing a client for mediation includes explaining to the client what to expect at mediation, which can help the client achieve the right mindset. For instance, explaining to a client that mediation is a non-adversarial, informal procedure the primary goal of which is settlement can help insure the client approaches mediation with the mind-set of a problem solver as opposed to that of a combatant.
Preparing a client for mediation may also include strategizing with the client in advance. Discussing with a client how much she will pay or how much she will accept to settle a case and learning whether installment payments are necessary or whether they are acceptable to the client may help you determine how best to present your client’s position in a way that may be more well received by the opposing party.
When discussing how to increase the likelihood of a successful mediation conference by preparing in advance, the importance of a mediation statement cannot be overlooked. A mediation statement should be brief, yet informative. It should include a concise discussion of the relevant facts and a succinct explanation of how the facts support your client’s position. While citations to the applicable law are also helpful, it is not necessary to include an exhaustive argument of your client’s position. A well-prepared mediation statement serves to not only educate the mediator but also allows the party’s advocate to convey the message she wishes to convey to the opposing party, without interruption. A well-written, persuasive summary of your client’s position may serve to influence the opposing side in the direction of settling the dispute, thereby increasing the likelihood of a successful mediation conference.
Mediation is a process much like patience is a virtue. Just as important to a successful mediation as constructive communication or preparation is patience. Indeed, it is not uncommon for one or both parties to become restless and discouraged by the lack of movement towards a resolution early on in the mediation conference. As history has shown, however, those parties who remain committed to the process and who continue to actively engage and participate in productive discussions notwithstanding the late afternoon onslaught of stomach growls and yawns, will increase the likelihood of a successful mediation conference and, thus, a resolution of their dispute.