When I sit down to pen an article for the ADR Blog to help Attorneys, I find that I’m naturally drawn to alliteration. The words that sprang to mind were easy for this one: Persistence, Patience, Positive, Palliate, Possible, Prevention and Principle. Let me talk about how each word can impact your mediation:
1. Persistence– You are going to have to be persistent when you are involved in a mediation. At one point or another, you will reach an impasse during your negotiations. If you are persistent in your attempts to resolve your dispute; i.e. be creative, look at how many small agreements you have accomplished, keep the conversation going; you will have a better chance at succeeding in the mediation.
2. Patience– Patience and persistence go hand in hand. In order to be persistent during a mediation, you, also, need to be patient. Patience is a virtue. The process needs time to percolate. You might get frustrated by the length of time the mediation takes, but a mediation that achieves a resolution is well worth the wait.
3. Positive – Stay positive. Negative energy can doom a mediation. Your attitude does matter, so keep it positive. Your attitude can impact your client’s attitude, too. A positive attitude about the progress you are seeing can be contagious.
4. Palliate – Part of staying positive is to palliate the dispute between the parties. You should take it down a notch and lower the rhetoric; that will go a long way in calming the atmosphere in the room and contribute to a successful resolution.
5. Possible – Anything is possible in a mediation. You can reach settlements during a mediation that are just not obtainable from a trial. The possibilities of the types of resolutions that you can see as a result of a mediation are only limited by your own creativity.
6. Prevention – An ounce of prevention is worth a pound of cure. A resolution obtained from a mediation might prevent a disaster that may occur after a long and protracted trial. The certainty of a settlement is better than the uncertainty and risk of a trial.
7. Principle – Being principled is an attribute that most people find to be wonderful. However, how many times have you heard from a client that they won’t settle because “it’s the principle…”? A principled party to a mediation can be an impediment to reaching a settlement. You will have to use all your skills as a lawyer to show your principled client that a resolution is more advantageous than going to trial. You shouldn’t let a principled client get in the way of a good resolution that would be in the client’s best interest.
Well, there you have it. A few more insights that will help you, as a lawyer, become a more effective participant in the mediation process.