Ready, Set, Mediate!

This post summarizes the discussion in a program entitled “Ready, Set, Mediate!” at the recent Court ADR Symposium.  The program about helping parties prepare for mediation sessions was part of the ABA Section of Dispute Resolution’s annual conference.  This post includes the audience’s experiences of problems due to inadequate preparation for mediation sessions and a list of materials they use or would like to use.  The last part of this post provides helpful resources to help people be as ready as possible when their mediation sessions begin.

The program featured presentations by Rebecca Price, Margaret Huang, and me.  I described goals and benefits of preparation, studies finding failures to prepare before mediation sessions, consequences of failing to prepare, and how courts can – and some do – promote preparation.  Rebecca described ways to promote preparation.

Margaret is a member of a Court ADR Committee subcommittee that developed a draft document, Mediation Preparation Considerations for Court-Annexed Programs.  She described the contents and rationale for the recommendations, which include separate considerations for self-represented litigants, attorneys, and mediators.  The other members of the subcommittee are Elizabeth Chaney, Laurel Stevenson, and Nick White.  The subcommittee is seeking comments and suggestions about the document.  Please send any comments to Laurel Stevenson.

Here’s the powerpoint from Rebecca and my presentations and here’s Margaret’s powerpoint.

Problems Due to Inadequate Preparation for Mediation Sessions

We asked the audience to describe problems due to inadequate preparation for mediation sessions and here are their responses.

Poor Lawyer-Client Relationship

  • Lawyer meeting client for first time in mediation
  • Lack of preparation of parties before mediation
  • Lack of emotional “reading” of clients

Missing or Inappropriate Participants

  • One or both parties lack authority to settle
  • Essential stakeholder is not present
  • Poor choice of party representative (who may not be helpful or trustworthy)

Lack of Necessary Knowledge

  • Parties don’t understand what to expect from the process
  • Participants don’t know what is needed for preparation
  • Attorneys make poor evaluation of the case
  • Attorneys don’t know the applicable law, e.g., standard for review
  • Attorneys don’t know the facts of the case
  • Participants haven’t done homework, e.g., considering options for settlement
  • Participants don’t provide needed information, e.g., negotiation history
  • Mediation briefs don’t clearly explain things, e.g., settlement positions

Failure to Prepare for Foreseeable Problems

  • Need for domestic violence screening in family cases
  • Lack of backup plans in case of technological problems
  • Language barriers requiring translators
  • Preparation understandable by children and less literate parties

Useful Materials

We also asked the audience about materials they use or would like to use to help parties prepare for mediation sessions and here are their suggestions.

Explanation of Mediation for Parties

  • Use language carefully, which can make a big difference
  • Explain that mediation is a process, not an event
  • Explain what mediation is and can do
  • Encourage parties to participate (see MACRO study)
  • Build rapport with parties, encouraging them to believe in and get ready for mediation
  • Explain value of mediation to parties, including retaining control (instead of giving it to a judge), resolving case without trial, reducing emotional cost
  • Set realistic expectations about amount of time needed
  • Find a way to get people to watch video, e.g., require parties to file statement with court saying that they watched a video

Video

  • Use short video, which may be more helpful than text for some parties
  • Use MACRO videos
  • Use judge in video to provide early “contact” with judge and “bless” the process

Guidance for Preparation

  • Provide checklist for preparing for mediation, e.g., Oregon guide for attorneys in family cases
  • Encourage parties to prepare mediators for what parties need
  • Help attorneys prepare clients for grief of disappointment

Tools

  • Provide empirical data (aka data analytics) showing patterns of court decisions

Selected Resources

Lots of resources already exist to help prepare parties and attorneys for mediation sessions, including the following.

ABA Guide to Prepare for Mediation.  This short guide explains the mediation process, selecting a mediator, preparing for mediation sessions, getting advice, having a productive mindset, identifying procedures in particular mediations, dealing with possible mediator suggestions, negotiation strategies, and following up after mediation.  There are versions of the guide for family cases and complex civil cases.  These guides are valuable for self-represented parties and for attorneys and mediators to help prepare clients for mediation sessions.

John Lande, Real Practice Systems Project Menu of Mediation Checklists (2023). Pages 6-8 provide detailed checklists of things to do before mediation sessions.

Brian Farkas & Donna Erez-Navot, First Impressions: Drafting Effective Mediation Statements, 22 Lewis & Clark Law Review 157 (2018).  This article provides very practical advice.

John Lande, Focus on Party Decision-Making  A major motivation in the modern dispute resolution movement has been to increase and improve parties’ decision-making in their legal disputes.  This post shows that when parties are well-prepared in advance, they are as knowledgeable, confident, and assertive as possible in making decisions in their cases.

John Lande, The Critical Importance of Pre-Session Preparation in Mediation.  This short article describes why pre-session preparation is so important.  In mediation, parties and their lawyers, if any, need to be prepared to discuss the facts, law, interests, and/or negotiation approaches etc.  Mediation programs and mediators should do whatever they reasonably can before the first mediation session in each case to make the process as productive as possible.

John Lande, Party Self-Empowerment from Preparation for Mediation Sessions.  If parties are well-prepared before mediation sessions, they will be knowledgeable, confident, and assertive so that they can exercise their decision-making authority as well as possible.  Well-prepared parties can make decisions before and during mediation sessions rather than simply relying on mediators to promote their self-determination.

John Lande, How The Real Practice Systems Project Can Help Improve Mediation Quality.  This post begins by summarizing the limited efficacy of ethical, legal, and theoretical standards in protecting parties in mediation.  Helping parties and lawyers prepare before mediation sessions should help the parties and mediators achieve their goals because the parties and lawyers are more likely to advocate effectively and be satisfied with the process and outcome.

Michaela Keet, Heather Heavin & John Lande, Litigation Interest and Risk Assessment:  Helping Your Clients Make Good Litigation Decisions (ABA, 2020).  This book provides detailed descriptions of assessment of individual and organizational parties’ intangible interests, a framework for realistically estimating court outcomes, and advice about using these materials with clients, counterpart attorneys, and mediators.  It includes numerous appendixes with practical checklists.

John Lande, How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions? (2023). This article analyzes court-connected mediation generally and provides a detailed analysis of the rules and materials of the 94 federal district courts.  Based on exemplary rules and materials from some courts, it makes general recommendations for court-connected mediation.  It includes a 10-page appendix with helpful publications for parties and practitioners, videos for parties, helpful court websites, and technological resources.

John Lande, Takeaways From ‘How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?’ (2023).  This is the Cliffs Note version summarizing empirical research and recommending that courts adopt exemplary court rules and use materials developed by some federal district courts to promote good practice by attorneys and mediators.