There has been an ever-increasing trend towards amicably resolving litigation disputes, even the most contentious, through a meditative process with a neutral third-party mediator, or even with the judge presiding over the matter in a jury trial, rather than proceeding with the inevitable risks associated with trial. Mediation serves as a cost-effective avenue to resolve conflict and allow the parties involved to feel as if they have had their proverbial “day in court.”

Although there is no “best way” to negotiate in a mediation setting, various approaches should be considered and utilized by all parties involved and the key element centers around preparation – for the attorney, the client, and for the mediator facilitating the resolution.

Attorney Preparation
The lawyer must accept that mediation is client-centered and although our focus throughout litigation may be to “win,” one must reframe that mindset to accept that in mediation, arriving at a resolution your client is satisfied with is considered a win and settlement does not translate to a loss. Effective advocacy will also require the attorney to have a deep understanding of the shared interests of the parties and leverage those interests to their client’s advantage. For instance, if both parties share discomfort surrounding the deep dive into discovery that awaits them after mediation, make sure the mediator is aware of this and emphasizes that point to the other side. It will also be worthwhile for the attorney to harp in on these points in the written mediation statement submitted prior to the mediation.

Client Preparation
More often than not, clients do not want to go the distance to trial as they would rather not spend the next two+ years of their lives consumed by a contentious and costly dispute. The lawyer must prepare the client ahead of the mediation so that the client can understand the merits and risks of their own case. It is imperative that the client recognizes the merits of the arguments made by the other side and that their case may not be the slam dunk they think it is. Juries (and judges) can be very unpredictable, and a case can turn on its head at any moment. If an aversion to risk exists, the client must give mediation their best shot and be willing to get creative with potential solutions.
It is also essential that the client fully understands that the result of successful mediation will include some form of compromise. The client is likely not going to get everything they want, and it is wise for the attorney to manage the client’s expectations by informing them what their worst and best day in court will look like and getting them comfortable with what they are willing to accept within those bookends.

Mediator Preparation
Different mediators have various tools they employ in their attempt to arrive at a settlement. One method that has proved effective is to have separate pre-mediation sessions with the parties to better understand their posture and tolerance, rather than relying solely on the written mediation statement submitted the week or few days before mediation. By getting to know the clients and attorneys ahead of time, the mediator can get crafty on how to divide and conquer – this familiarity can also allow the parties to forgo introductions and save hours of time come mediation day.
Engaging in mediation in good faith and with an open mind, both from the lawyer’s end and the client’s, can do wonders to change the outcome of a case. Even if mediation does not result in settlement, at the very least it can provide all parties with the comfort of knowing they exhausted all options for resolution and can then face trial without any lingering doubts.

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Isra Khuja is an associate at Rossman, P.C. and currently serves on the council for the SBM Young Lawyers Section representing District 2, Oakland County.