One of the benefits of private mediation is that the parties and their counsel can customize the process in ways that are otherwise controlled by the Judge and Rules of Civil Procedure in the court house.  Typically, the mediator will be open to your measured advice about such things as exchanging briefs (or keeping them confidential), conducting a joint session (or doing all of the negotiation from separate rooms), revealing confidential information (or withholding it), timing of the hearing before extensive discovery and expenses are incurred and even allowing the parties to express their emotions to one another or to the mediator at the outset of the hearing.  All you need to do is express your thoughts and explain your rationale and most mediators will not fight you on the control of the process in these particulars.

     One of the ways that Attorneys can maximize their client's outcome in a mediation is by carefully analyzing the most effective ways to prepare the other side, your own client and the mediator through a tailor-made process best suited for your hearing.  Once you have figured out your preferred strategy, send a letter or an email or call the Mediator in advance of the hearing and ask them if it is okay to, for example, start the hearing in separate rooms, or keep briefs confidential.

     This week I am mediating a matter where a long-term employee felt let down by his employer's heartless delivery of a termination notice without explanation.  The lawyer representing the employer indicated that a short joint session with a sincere explanation and interaction between the principals might help clear the air.  I would not have known about their willingness to do that, and may not have taken that risk, if the lawyer had not communicated that advice in his brief.  In another matter, the lawyers were so contentious that both briefs (confidentially, of course) indicated that they had numerous challenges gaining cooperation from their opposing counsel and would prefer not to have to deal with them directly.  In that case, it was best to keep the lawyers apart until the appropriate time when they needed to collaborate on the fine details of a settlement.  Again, lawyers with great negotiation skills arrive at the mediation hearing having considered all of the possible advantages they can get to assure success for your client.

You can't succeed without planning for your success!

Good Luck!  

 

Jan Frankel Schau  

 

 P.S.   I am pleased to be attending the ABA Dispute Resolution Section Conference in Miami, Florida April 2-5 this year.  If you will be there, give me a shout! 

    

Jan Frankel Schau Mediator/Arbitrator/Attorney ADR SERVICES, INC.    310-201-0010 [email protected] Follow me on Twitter at:  @JanSchau Facebook at:  Schau Mediation Blog:  www.schaumediation.com/blog  Author, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction" (AuthorHouse 2013) Now Available on Amazon.com

To Schedule a Mediation     Contact Case Manager:  Eve Thorstens:  310-201-0010    Jan Schau's Direct Dial:  818. 986.9876    Visit Jan's Website     Check out my Weekly Blog: www.viewfromthemiddleoftheroad.blogspot.com    Author, "View from the Middle of the Road:    A Mediator's Perspective on Life, Conflict and Human Interaction" (Author House, 2013)   Purhcase "The View from the Middle of the Road"