There’s little that lawyers, especially litigators, like more than control. Consider that mediation is not the forum to flex your muscles and maintain a death grip on the steering wheel. Save that for the depositions, the briefs, and the motion practice.
In mediation, trust the process. Trust your mediator to guide not only the parties, but also the lawyers through the process and toward a resolution that allows the parties to leave with some sense of dignity and peace. It can be disruptive and counter-productive when a lawyer inadvertently hijacks the mediation. To avoid that, when handling your next guardianship or fiduciary litigation matter, try implementing these three mediation techniques to prime the mediation for success.
Opening Session is Critical
When families are entrenched in a battled, it is not uncommon for attorneys and mediators to consider foregoing the joint opening session because there is a risk such a joint opening session could go terribly wrong and derail the whole mediation. This is understandable, but the opening session in guardianship and mediation cases is also an incredible opportunity to start laying the foundation for a bridge across the chasm. It sets the tone for the mediation and primes the parties for resolution. It allows the mediator to begin setting the stage for the parties to think differently so they can gradually switch from a litigation gear to a resolution gear.
Posturing, chest pounding, blaming and aggression in joint opening sessions is wholly unproductive and causes the mediator to spend invaluable time in the initial private caucuses undoing, if possible, the damage inflicted during opening session. On the other hand, if lawyers and parties adhere to the simple guidelines of being kind, respectful, and compassionate, they can take advantage of the opportunities that a joint opening session provides without causing any collateral damage.
I will never forget one joint opening session during which one of the lawyers gave a genuine and heartfelt acknowledgement of all the positive things that a party on the opposite side of the table had contributed to a family. The party visibly relaxed and softened, and many hours later, the parties agreed to a resolution.
By acknowledging the opponent, this lawyer was not a zealous advocate in the traditional sense of the word. However, I would suggest that the outcome was certainly in the best interest of the client.
Start With Your Why
If you state your position first and then explain your reasoning, chances are the other parties and attorneys will tune out everything you say after you state your position as they evaluate, judge and respond to your position. Instead, explain your why before stating your position so the other side is more likely to hear and understand the reasoning behind your position. Here’s an example:
First [your why]: My client has an interest in his mother being in a safe and supportive living situation where there are qualified people to care for her.
Then [your position]: That’s why my client requests moving mom into an assisted living facility.
Focus on Your Interests
Help your client focus on what is most important to him, rather than attacking or blaming what the other side has done or failed to do.
Unproductive: My brother is a liar and thief who refuses to tell me how he’s been spending mom’s money. He absolutely can’t be allowed to oversee mom’s finances.
Try This Instead: Over the last 6 months, mom’s checking has declined from $50,000 to $10,000 account balance. I have a need for transparency and oversight. Accordingly, I request that the public administrator be appointed to handle mom’s finances.
Focus on facts rather than judgments. State the facts, focus on interests, and ask for what you need to meet your interests. You might be surprised just how willing the other party is to say “yes,” to a powerful request. The benefits can go beyond a successful resolution of a guardianship or fiduciary dispute — and even extend to opening doors to salvage family relationships.