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September 2020 Mediation Tips by Fran

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. Make sure the people can stay longer than the anticipated time in case the mediation goes longer than anticipated. 

Story – A modification case was resolved in 3 hours but we needed to write up and sign a Mediated Settlement Agreement. Suddenly both parties started to leave. Their child had an important program at school that evening. Neither party had told their lawyer that they had to leave early in order to drive to attend the event. Warn parties in advance that they should be prepared to remain during the entire length of the mediation process.

2. Whenever possible, get everyone to sign the Mediated Settlement Agreement at the time you meet. 

Story – I did an evening mediation, everyone agreed to the MSA within 2 hours. I needed to write it up, then have the attorneys and their clients review it. Everyone was tired and wanted to go home. So the attorneys authorized me to write up the MSA and email it to them. They promised it would be signed and returned to me before noon the next day. Getting the MSA signed turned into a nightmare and took almost a week with numerous emails and phone calls to the attorneys to get everyone to sign. 

3. Feed people at mediation. When I first began mediating, I bought “healthy” food but no one ate it. So I shifted to “junk” food. I realized that when people are under stress they want “comfort” food. 

Story – I ordered BBQ sandwiches for an evening mediation. One attorney arrived late. He said he did not want the sandwich and seemed very grumpy and argumentative. I left it in the room and went to start with the Petitioner in another room. When I came back into Respondent’s room the mood was completely different. The attorney was a different person. We settled the case quickly. He admitted that his blood sugar had dropped and that the sandwich really helped. That $6 BBQ sandwich was worth every penny! 

4. I often find it helpful to tell the parties that I’ve run out of ideas and solicit their help in coming up with ideas to resolve their case.

Several times I’ve told parties, “I’m about to declare an impasse, but before I do that, what else can I do to help you resolve your issues?” Sometimes cases seem to get settled at that point. When people realize that an impasse is about to be declared, they are finally willing to make a solid settlement offer in an effort to be done with the dispute.

5. I’m often surprised how often the opposing attorneys have not talked to each other.

Many times I take the attorneys outside away from their clients and just ask them where the case is and what is it going to take to resolve the outstanding issues. 

Story – One time I had 2 very aggressive, successful male attorneys. We were stuck. So I took the 2 attorneys out and I just sat back and watched them access each other. When each realized that the other was competent and comfortable with going to trial, one attorney made a reasonable offer, and the case was resolved rather quickly. 

6. I have found it very useful to have a brief meeting with the attorneys alone before even starting the mediation.

I often ask attorneys if there have been any offers made between the parties. Sometimes I ask about the best way to approach their client. I have found these pre-meetings make the mediation go much quicker. 

Many times the attorneys have not talked to each other and this is their chance to talk in an informal atmosphere. They don’t have to “posture” for their clients. Plus, sometimes the attorneys give me a lot of insight into the personality of the parties or what the “real” issues is. 

Sidenote: I’ve unfortunately had to introduce an attorney for the first time to his or her client at mediation. The 2 never interacted before because a paralegal did all the communication. The first time this happened at a mediation I was surprised. After all these years experiencing this I am no longer surprised.