HUERTA & ASSOCIATES MEDIATION

Why Mediation Works

WHY MEDIATION WORKS
&
WHAT WORKS WELL AT MEDIATION ©

By: Lawrence A. Huerta

I.   WHY MEDIATION WORKS

Premise:

In most disputes, particularly relationship based disputes, there is a significant desire by disputants to be heard and understood by the other side.   This is especially true in cases that have the most realistic chances of settlement.

Premise:

Mediation properly conducted provides both sides with the opportunity to be heard and understood by each other.

Premise:

When parties believe they have been heard and understood by the other side, they feel empowered, they become much more flexible, more willing to compromise, and  more willing to put the matter behind them.

 

     

 

II.   WHAT WORKS WELL AT MEDIATION  [ The Ten Keys]

  1. Remember mediation is a forum of negotiation, more than it is an adversarial proceeding.

  2. Listen well, emphatically, and empathetically. Earnest listening engenders understanding and flexibility from the other side.

  3. Be able to articulate the other sides view of the case.  You will invariably learn something otherwise missed in discovery.

  4. Be prepared and organized, but not dogmatic.

  5. A litigation risk analysis is an extremely useful analysis and preparation tool. Consider
    what is new information at mediation and revise your litigation risk analysis accordingly.

  6. Get honest assessment from mediator.

  7. Avoid “preening” at  mediation. Remember the primary audience after the opening
    statement is the other side. Your client and the other side are the decision makers.

  8. Remain open minded. Staying flexible makes you more agile at mediation to pursue client’s best interests, and encourages goodwill and flexibility from the other side.

  9. Communicate with the mediator about client control issues and whether you are     looking for help from the mediator with such issues.

  10. Be responsive to what you are hearing. This makes you a more effective negotiator. It also encourages the other side to be more responsive to you.

The foregoing points are the most common practices of the greatest trial lawyers and the greatest negotiators I have worked with over the years. They are also the practices deemed most effective by the outstanding lawyers and negotiators I have spoken with about negotiation techniques.

III.  ZEN MEDIATION APPROACH

Goal:  

Have each party be heard and understood by the other.  If both parties are heard and understood by the other, every case that has a reasonable chance of resolving will resolve.

 

     

 

IV. MAXIMIZE OPTIONS & FUTURE STREAM OF BUSINESS- (For Outside counsel)

  1. Efficiently handled discovery and litigation will result in stream of business.

Notes:  Magic of Mediation is the flexibility and willingness of parties to compromise and resolve claims once they have had the opportunity to be heard and understood and taken the opportunity to hear and understand the other side’s view of the case.

Remember the primary audience is the other side after the opening statements, not a judge.  This calls for a shift from an adversarial to more of a creative problem solving approach. Use “Why?” Identify impediments to settlement. Be authentic with use of apologies, or do not use them.  Tone is often more important than content.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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