• Listen. An effective mediator listens far more than he/she talks. The adage is true, that is, God gave us two ears and one mouth. We should listen twice as much as we speak.

  • Empathize. I have sat in the seat of every participant in most mediations. I have represented plaintiffs and defendants. I have been a plaintiff and, unfortunately, I have been a defendant. I share this with the parties and their counsel so that they know I can relate to how they are feeling.

  • Mediations are like fine wine—they often get better with time. I do not expect that the parties are “willing to deal” within minutes after the mediation begins. Patience is important. The parties do not want to feel rushed and it takes time for them to develop rapport with the mediator and their opponents.

  • Prepare well. I routinely require pre-mediation phone calls during which counsel and I discuss ways that we can make the mediation more successful. This forces counsel to think about their cases sooner than later. Counsel and the parties want to know that the mediator has read and understood their submissions. They appreciate thoughtful questions.

  • Make the participants comfortable. The mediator should do all that he/she can to make the participants comfortable. I typically host the mediations in a separate, private and confidential space. They are greeted by my friendly staff who makes them feel at home. We have ample beverages and snacks. We take lunch breaks when appropriate. Comfortable participants settle more cases than uncomfortable ones.

  • Help the lawyer if the client is the problem–help the client if the lawyer is the problem. The mediator’s independent voice can help. Some clients believe that their lawyer is pushing for a settlement solely to earn a quick fee. Some lawyers fail to educate their clients about the law, the mediation process and case values. A mediator can help in these situations.

  • Close the deal. More counsel should come to the mediation with a draft settlement agreement. Even when a more complete settlement agreement is appropriate, the mediator should commit the basic terms of settlement to a writing that is signed by all participants and their counsel. This effort reduces the potential for misunderstanding after everyone leaves the mediation.
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