5 Secrets for Mediation Success By Chuck Boyk
Mike Hyrne has been practicing law for 43 years. Since 2003, he has conducted nearly 5000 mediations at the request of courts and private attorneys. In Northwest Ohio, Mike is the most well-known, most frequently used, and the go-to mediator for all types of cases. He has seen the success and failure of attorneys attempting to resolve cases through mediation. His favorite quote is from author and humorist Molly Ivins: “Actually, let’s start by thinking.” Thinking is crucial for an attorney before entering into mediation. Mike’s 5 secrets are as follows:
1. No Surprises – Surprises that emerge at the mediation session can lead to confusion and failure. For example, at least 30 days before mediation a demand letter with all relevant documents, reports, numbers, etc. should be provided to your opponent. In an injury case, this includes expert causation reports, verification of liens, gross medical bills, and the net “Robinson” number. A “pre” review of this letter by the client will help ensure that all is in order. Attorneys should provide the opposition with all information needed to allow intelligent consideration, and complete evaluation, by their client. Surprises (especially last-minute surprises) can lead to confusion and a perceived lack of credibility.
2. Prepare Your Client – The entire process should be explained to the client before the mediation. This includes how to dress, the goals, the strategy, who the players are, how long the mediation will last, the client’s role, and if they need to speak. The strengths and weaknesses of the case should be discussed. So should the pros and cons of settlement vs. trial and the costs associated with proceeding forward. The personalities of the mediator and the opposing attorney need to be explained. Remember, the client must be prepared to make reasonable, and perhaps difficult, decisions.
3. Prepare Yourself – Mediation is not about your ego. To zealously represent your client, and to act in his or her best interest, you should develop a shared pre-mediation strategy, goal(s), and the ability to roll with the punches. If you represent the plaintiff, the primary “goal” is to determine how the defense values and evaluates the case. You need to try to find their “best number”, and to best decide whether settlement or continued litigation is the best course of conduct.
4. Prepare the Mediator – Almost always, it is best to provide a mediation brief to the mediator. This should include “succinct” information focused on the most important issues. For example, in an injury case you do not need to pass on 400 pages of medical records. What are the “real” issues in dispute? If the issue is “what” injuries are linked to the accident, then reports of the client’s prior “medical baseline” and medical condition after the accident may prove relevant. Afterall, that will be your most important evidence at trial.
5. Read the Room – Who is really “calling the shots” for your opponent? Is it primarily the attorney or his/her client? What seems to be the issue driving the mediation? Does your client understand what is going on and is he/she under control? How can you utilize the mediator to make the process go smoother? Are we just arguing “value” or is there more work to be done before meaningful negotiation? Does a meeting (or several) between just the attorneys and the mediator make sense?
Preparation, communication, and “thinking” are the keys to success. Mike has resolved the vast majority of the mediations I have had with him. He is classy, and funny, and can tell both sides “the truth” of their positions in a case. He has my highest recommendation. If you would like to contact him concerning a privatemediation, the best way is through email:mhyrne@buckeye-express.com
