“Hold the pickles. Hold the lettuce. Special orders don’t upset us. Have it your way.”
I was reminded of Burger King’s once popular jingle last month when I attended a program titled “Attorney’s Pet Peeves About Mediation” at the 23rd Annual Fall Conference of the Southern California Mediation Association. The program featured litigators Lisa Maki, Michael St. Denis and Randall Dean, who shared their personal likes and dislikes with those of us in attendance. Not surprisingly, their personal preferences often differed, reaffirming what has always been my guiding principal — that every mediation must be carefully tailored to suit the needs and preferences of the participants.
As the trio confirmed, some attorneys prefer to exchange mediation briefs, while others prefer to keep them confidential; some attorneys loathe joint sessions, while others welcome them; some attorneys want their mediators to provide a personal evaluation, while others want their mediators to simply facilitate discussions, without ever expressing his/her personal opinion; some attorneys want their clients included in every discussion with the mediator, while others prefer to meet privately with the mediator and then relay information separately to their clients.
Most mediators won’t insist on doing it their way — most agree you should have it your way. Of course, that requires that you indicate in advance what you like and what you don’t. Most mediators will inquire when you contact them to schedule a mediation, but some may not. If a mediator forgets to ask, be sure to share your own “pet peeves.” For example, let your mediator know whether you prefer to exchange briefs or keep them confidential. If the parties’ preferences differ, perhaps a compromise can be fashioned that serves everyone’s needs.
If you prefer to begin your mediation with a joint session, with each side presenting an opening statement, let your mediator know. If you prefer that any joint session be limited to introductions and the exchange of pleasantries, without any discussion of the facts or parties’ contentions, let your mediator know. If you never want the parties in the same room, let your mediator know. Instead of deferring to your mediator’s usual and customary style, have it your way.
Let your mediator know whether you are more partial to an evaluative style or a facilitative style. If you believe the mediation is likely to be more effective if the parties arrive at staggered times, tell your mediator. If you would rather engage in all settlement negotiations outside the presence of your client, tell your mediator. If you sense there will be a benefit to having the mediator visit the accident scene, or the site of a real property dispute, let your mediator know.
When counsel and their clients take ownership of the mediation process and its design, they become more invested, which, in turn, enhances the odds of resolving the underlying dispute. So next time you schedule a mediation, remember the Burger King jingle and have it your way.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards . . .
Floyd J. Siegal