By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 10:  “The Future of Mediation.”

In this series of articles, I have tried to offer a few practical tips to help you use mediation in the most effective and creative ways, to get the best result for your clients.  This final article in the series looks to the future of the mediation process, and offers a few suggestions about retaining the best that it has to offer for your clients and your practice.

Only a few years ago, mediation was a promising innovation in case resolution.  The idea of engaging the clients directly in a confidential exploration of interests with a skilled facilitator, with a focus on overcoming barriers to resolution, was very exciting, and the results were often pleasantly surprising.  Mediation was private and voluntary, and had a distinctly different flavor than the adversarial activities of litigation.  In the last five to ten years, this has changed.  Mediation has become institutionalized, with court programs in every California state court and all federal courts, exerting varying degrees of pressure to mediate under the watchful eye of the court.  Mediation has become more another court mandated step in the procedure of civil litigation, and less a private and voluntary commitment.  Attorneys come less prepared, sometimes without clients, and with less expectation that something good will happen.  The advocacy often takes the form of strident argument, rather than the more nuanced settlement advocacy discussed in these articles.

The results of this shift in the culture of mediation have been mixed.  More cases are now settled privately due to court referrals, lightening the burden on courts and counsel.  However, less commitment and creativity are often brought to the table, by counsel and by some mediators.  Mediation becomes more akin to a court settlement conference, with less client involvement and satisfaction.  Many mediators are now entirely avoiding client interaction in joint session, and some spend little time with clients in private caucus. 

Perhaps it was inevitable that institutionalizing the process to touch virtually every litigated case would result in some loss of quality.  Mass production following the industrial revolution created a lot of Model T’s, but the work was rarely hand crafted. 

The good news is that there are now many mediation options available to you, from the quick and cheap settlement conference to test the water without much commitment, to the most carefully fashioned and creative mediation process.  The important point is that mediation at its best is not litigation “business as usual,” but is as flexible, dynamic and powerful as the imaginations of the mediator and counsel. 

As the volume of mediated cases and familiarity with the process increase in the future, resist the inertial tendency to approach it with less imagination.  Here are a few suggestions: 

1. In the more significant or sensitive cases, engage the mediator early for Case Management discussions with all counsel, to plan the approach  to mediation and maximize the chance for success.

2. Conference ex parte with the mediator prior to the negotiating session, to preview issues that you need him to attend to, or to seek guidance on the best approach.  A better prepared mediator is always more effective.

3. Take the time to send a letter or brief to the other side before mediation, discussing the merits, but also emphasizing other points which might make a favorable decision easier to make. 

4. Engage the client in direct interaction with the mediator and decision makers.  The client usually benefits, but it takes more work (and more nerve). 

5. Initiate some mediations independent of the court programs, before or after filing suit, preserving the voluntary and entirely private character of the mediation. 

6. Acknowledge the merits, virtue, or good faith of the other side.  Even apologize, if appropriate.  Genuine human communication does make a difference. 

7. Hold a mediation session at a uniquely pleasant location, such as a beautiful resort.

The most satisfying uses of mediation involve thinking just a little outside the box of litigation advocacy.  Our familiarity with the process need not dampen that creative potential.  There really is a little magic in mediation, when well done.

I hope that this series of “Mediation Tips” articles has been helpful in your practice, and I thank many of you for the positive feedback and useful suggestions.

back to top