“The real art of conversation is not only to say the right thing in the right place, but to leave unsaid the wrong thing at a tempting moment.” Benjamin Franklin

An awful lot has been said and written over the years about opening statements in mediation. Concern over the abuse and potential inefficiencies of opening statements has led us to where opening statements and joint meetings of the parties are almost never held in certain jurisdictions.   Not having a joint caucus to begin a mediation is a lost opportunity to make your case directly to the other side. Having a successful joint caucus does, however, require that both parties and counsel have enough discipline to not say what they may really want to say. I have seen any number of mediations take a wrong turn out of the gate when counsel for one party gives their “trial opening” or insists on vilifying the other side to their face. When it comes to opening statements and joint caucuses, nice guys and girls finish first, as reflected in the ultimate mediation results. Speak directly to the opposing party or at a minimum to the mediator prior to the session to confirm everyone is on board with giving “productive” opening statements. If you insist on going all scorched earth in your opening, at least give the mediator a head’s-up, so he can get everyone else, including your client, out of the room first.

“They are not here in good faith.” (said by most attorneys at some point during a mediation).

Can we just stop? Please? I am convinced that the definition of “bad faith” in mediation is defined as any statement or action by one party or their counsel that is not what the other party wants to hear or see. The first demand and offer are almost always disappointing. Posturing for the client is expected, to a point. Beyond that it becomes counterproductive.   Maybe wink at the mediator before going on a tirade about how unreasonable the other side is and how they are clearly not here in good faith! Which leads us to…..

“It doesn’t matter where they start. All that matters is where they finish.” Devon Coughlan (and most other mediators I suspect)

Every mediator preaches patience. Clients need to vent. Mediation is supposed to be cathartic. This is all an expected part of the process. Taking an hour to make an initial move in response to a demand received prior to mediation, because your client is so upset with where the other side started, is not hugely productive. The first moves in a mediation are almost always less than baby steps. They are largely meaningless. They do not set benchmarks, establish brackets, suggest midpoints, or accomplish much other than marking the initial stages of a negotiation. Let’s not get too bogged down before we have even really started. Taking time to carefully consider a move when it counts makes sense. Taking until lunch to decide if you want to offer $5,000 or $10,000 in response to a five million demand, not so much.

“If all you have in your toolbox is a hammer, you will see everything as a nail.” Mark Twain.

Mediation, at its heart, remains a people process. It is to a large degree personality driven. Some parties and their counsel come to mediation with a world-view, or agenda, that is inflexible. Those who are not able to recognize who they are negotiating with, on a personal level, and adjust their delivery and strategy accordingly, have a reduced chance of reaching a favorable outcome. Few people are really good at putting themselves in the other side’s shoes. Parties are often too focused on winning, not on where the other party’s head is, and where the real settlement opportunities may lie. Spending more time listening and observing will pay dividends.

“They need to understand…” or “You need to make them understand…”(at least one attorney at every mediation)

Let’s just walk that back for a minute, shall we? I do appreciate that parties have enough confidence in my ability to hire me as their mediator. I certainly do my utmost to “work my magic” at the end of the day in order to get a deal done. Unfortunately, my telekinetic and persuasive powers have not yet reached the point where I can make anyone understand something, particularly when they very strongly disagree, on a fundamental level, with the idea to be understood. Going forward, can we just roll with “I wish they would appreciate” or even “they should understand”? Take heart, we will most likely reach a settlement even if the other side’s understanding remains deficient to the end.

“I skate to where the puck is going to be, not to where it has been.” Wayne Gretsky

Creativity and strategy in mediation can be hard to come by. Mediation often devolves into a reactionary process, where each party bases its next move solely on what the other side just did. Everyone is skating based on where the puck has been. Party’s that have the most success at mediation are those that come in with a coherent strategy, which is far more nuanced than simply knowing what their settlement range is. Coming in with a plan allows a party to have more control over the negotiation and the process, and prevents “false impasses” caused by a temporary inability to bridge a gap created by reactionary negotiation tactics. Just remember,

“Fortune favors the prepared mind.” Louis Pasteur