Commentary: Tips for a successful mediation

A good mediator understands the law. A great mediator understands the people.

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  • | 3:00 a.m. August 3, 2023
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John McCorvey Jr.
John McCorvey Jr.
Photo by Julie Worthy
  • The Bar Bulletin
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Approximately 90% of civil cases will settle before trial, with a high percentage of those settling at or in connection with mediation.

Therefore, an understanding of the mediation process and the dynamics involved in mediation is critical to successful dispute resolution.

Rule 10.210, Florida Rules for Certified & Court-Appointed Mediators states: “Mediation is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.”

During the mediation conference, litigators sometimes have a difficult time stepping out of their more “natural” role as zealous advocates. However, “mediation advocacy is the skill of presenting a client’s position, needs and interests in a non-adversarial manner to persuade the other side to enter into an agreement by using active listening, empathy and problem solving instead of argument.” - Florida Mediation Best Practices Handbook (Second Edition), Page 14.

Counsel for the parties should prepare a mediation statement and provide it to the mediator far enough in advance of the mediation for the mediator to not only read it, but follow up with counsel on any issues that may impact the mediation participants’ ability to resolve the dispute at mediation.

The issues may be legal or factual in nature, but often will also involve the client’s unique interests, needs, circumstances and personalities.

Armed with this information, the mediator can develop and utilize an individualized mediation strategy for each party based on the unique interests, needs, circumstances and personalities involved.

A good mediator understands the law. A great mediator understands the people.

Presently, many mediation conferences take place virtually, usually over Zoom, or in a hybrid format in which some parties appear in person, and others appear electronically.

If possible, it is preferred that all mediation participants appear in person, although the advantages and need for virtual appearances at mediation are recognized.

The mediator and counsel for the parties should ask all virtual mediation participants to appear with video. It is very difficult for the mediator, as well as the other mediation participants, to build trust and rapport with a voice and a phone number appearing in a black box, and the important advantages of observing demeanor and body language are removed from the mediation process when that occurs.

When an agreement is reached, it should be reduced to writing and signed by the parties and their counsel as soon as possible, preferably before the mediation is concluded. Software programs such as Adobe and DocuSign are useful in obtaining signatures remotely.

Failure to obtain signatures at the mediation creates the risk of “buyer’s remorse” settling in with one or more parties and undoing the hard work and effort that went into reaching an agreement.

At times, the non-monetary terms and conditions of the settlement agreement such as confidentiality and non-disparagement are as important, if not more important to the parties in satisfying their emotional needs than the money paid. Among the strongest emotional needs is the need to be heard and taking the time to allow a party to “tell their story,” usually in caucus. The mediator exhibiting empathy for the client’s predicament is a necessary part of allowing the client to move into a state of mind that is conducive to settlement.

There is a way in which mediation has been traditionally conducted by mediators and counsel, and a way in which mediation could be conducted better. Given the percentage of cases that settle at mediation, and the importance of the mediation process, it behooves not only mediators, but attorneys, to educate themselves on mediation best practices.

In modern civil law practice, counsel should consider the development of his or her mediation skills of equal importance to staying abreast of substantive changes in the law.

It is only by counsel and the mediator working together that the atmosphere most conducive to settlement may be created, the needs of the parties satisfied, and creativity interjected into forming a mediated settlement agreement.

John McCorvey has 33 years of experience in civil litigation which he utilizes to help counsel and parties reach settlement agreements in a range of cases, focusing primarily on business disputes and HOA pre-suit mediations.



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