Mediation – I Get by With a Little Help from My Friends

Even the best mediator needs help from counsel to resolve a case. The attorneys who I mediate with are my best resource. I will always convene a Pre-Mediation call so I can obtain counsels’ insights into the case and the parties. I encourage this open communication even during mediation. Nothing helps me more than an attorney pulling me aside during mediation to provide me with his or her thoughts on how I can better connect with the parties. It is no coincidence that in every case where an attorney approached me privately to indicate that I was being too hard or too easy on the client, the case settled.

I will also, during mediation, pull counsel aside privately to brainstorm how best to resolve the matter. In a recent mediation, I was frustrated with a particular defendant who refused to increase his offer notwithstanding that his litigation costs were to certainly exceed the amount required to settle the dispute. After repeated attempts to encourage the defendant to offer just a little bit more to settle the case, I asked his attorney to speak with me in private. I told the attorney that I needed his help to convince the client that his holding out as a matter of “principle” will surely cost him dearly in litigation costs. I then gave the attorney private time to speak with his client alone to make sure that his client understood the ramifications of his refusal to negotiate further.

Not surprisingly, after twenty minutes of private conversation with his attorney, the defendant’s approach to settlement changed considerably. The case settled soon thereafter and there was no doubt that it was the direct result of defendant’s attorney providing guidance to his client. The mediation was a wonderful reminder that The Beatles got it right. We all get by with a little help from our friends.