A successful mediation will often leave you feeling accomplished because you’ve saved your parties’ from wasting time, money, and having a headache. However, leading a successful mediation will not always be easy as each case has its own challenges. Fortunately, there are some things that you can do to help your chances of getting past the barriers that stand in your way in any mediation. I am going to exemplify some of my tips by using a recent successful mediation regarding an alleged medical malpractice case.
Be curious. The key to asking the right questions is knowing what to ask. The parties will learn to trust you faster and be more open to your ideas if they get the sense that you know what you are talking about. Although you have a case file in front of you, that will often not be enough! In my recent case there were medical conditions and some legal questions that I knew little about. I went on a search website and began reading about what my parties would be talking about. Next, I opened up a blank text document and wrote out a bunch of questions that were interesting to me and relevant to the upcoming mediation. Being ready allowed us to get to the heart of the issues that the parties faced.
Be sympathetic. In that recent mediation, my co-mediator and I were surprised at one parties’ comment. During a caucus we expressed that if the comment was directed to us, we would feel hurt, disrespected, and put up our walls and fight back. The next time the parties met back together, there were apologies all around. As you might imagine this was the turning point to the mediation. It might not always be something as cathartic as an apology; but both parties do need to realize that mediation is a time where they have a safe and open opportunity to work together. Often the best way to create this environment is to share what you, as a neutral third party, would think and feel if they were in their situation.
Be creative. Even if both parties show a great willingness to work together, there will still be times that barriers block your road to success. Money issues are perhaps one of the biggest barriers. Fortunately, you can be creative in your mediation agreements. Listening to your parties and drawing from your experiences will give you the tools to create ideas that go beyond the dollars and cents. Keep in mind that not everything has to be paid up front. Some of your ideas might involve charities, education, future efforts and payments, or even the aforementioned apology. When we were faced with a money issue, we heard that one of the parties was concerned that no one else had to suffer the same. We suggested that the other party use its connections and engagements into making a good faith effort to rewrite some of its practices to prevent the same thing from happening!
Each and every one of you is capable leading a successful mediation. We have all been curious, sympathetic and creative at some point in our lives. Follow these tips and you will be on your way to having a successful mediation. And of course, if you have learned any tips along the way don’t forget to use them. Happy mediating!