The Closer

A Mediation Newsletter December 2013

The Mediation Partnership
by James Rainwater

The landscape of the legal profession has certainly changed over the past forty years. During that golden age, more cases went to trial, and the national crime rate exceeded that of today. Yet, more suits are filed now on an ever-widening array of legal topics and subject areas. Halfway through this transformation, there appeared the advent of alternative dispute resolution and more specifically, mediation. Mandated or voluntary, working with a mediator gives counsel the opportunity to partner with another professional.

The option to mediate a case before investing more time and effort into it is a powerful tool in any attorney's briefcase. It is also a chance to utilize that mediator as a cohort, confidant, and sounding board. The counsel-mediator partnership can last for a few hours or a few weeks, and attorneys should take advantage of this unique situation. This collaboration can afford an attorney with a completely fresh perspective and viewpoint.

As part of my scheduling process, I suggest to mediating counsel that they submit any pertinent documents and information to me prior to the mediation. To have some background on a matter before commencing the conference can be invaluable to the mediator. Such knowledge can expedite the mediation and perhaps, lead to a more effective settlement agreement. It also allows for post-conference mediation efforts in case of an impasse.

Of course, personalities can play a major role in mediation, and occasionally, opposing counsel may butt heads, or one attorney may even clash with the mediator. However, by and large, most professional mediators are extremely diligent, attentive, and conscientious. Regardless of personality differences, the mediator is a qualified neutral and presents an independent resource that should be utilized to the fullest.

Because the mediator is not a judge, does not make judgments, and judges no one at the conference, the mediator is truly in an exclusive position to provide a myriad of suggestions to the participating attorneys. Since this relationship is short-lived, it benefits counsel to make the most of their time before, during, and after the settlement conference. To not fully engage the mediator seems to lessen the clients' bang-for-the-buck, so to speak. As part of your next mediation efforts, consider and employ the unbiased assessment and outlook that the mediator can offer.

Rainwater Law