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Honing your mediation skills: Part 2
Here, three highly experienced mediators share further tips and tricks to help lawyers improve their mediation skills.
Grace Robbie
With mediation on the rise as a professional necessity for practitioners across the board, it is essential to learn from those already at the forefront of such practice methodology. Here, Steve Lancken, managing director at Negocio Resolutions; Nicole Davidson, principal at Nicole Davidson Negotiation; and Michael Mills, principal lawyer and mediator at Solve Resolve, offer additional insights and expertise on this subject matter.
To read their earlier observations and guidance, click here.
Communicate to your client about trial outcomes
Davidson emphasised that a crucial skill that lawyers need to cultivate in the context of mediation is the ability to assist clients in understanding the risks and potential outcomes that may arise in a trial setting.
“While it is inherently difficult to assess the prospects of success at trial, it is essential that clients have a clear understanding of these to make a sensible decision at mediation,” Davidson said.
A notably effective strategy that has assisted Davidson in this process involves constructing a “fairly complex spreadsheet” detailing various possible outcomes alongside “the net cash result of each and the probability of each”.
She noted the particular value of this approach in lower-value claims, where clients may harbour the belief that they have a robust case yet remain unaware of the financial realities of pursuing litigation.
“This gives a risk-weighted average of what the client can expect from the trial. Particularly in lower-value claims, when a client realises that they can win at court but still be left with only a small portion of their claim after legal costs are considered, they often become more willing to settle,” Davidson said.
Gain feedback from your clients
A crucial aspect of assessing one’s progress in meditation, as discussed by Mills, involves soliciting feedback from clients following each session.
“Speak and listen to the ‘consumers’ about their experience and feedback with you as a mediator and their experience – anonymously – of other mediators,” Mills said.
Mills proposes that questions you could ask them include, “What they like, what they don’t like, why? What they have seen work well, what hasn’t. Discuss different approaches they have seen.”
An alternative method for acquiring feedback, as noted by Mills, entails engaging in discussions with fellow mediators to gain insights into their perspectives regarding different approaches they might have employed in comparable situations.
“What is more, on the occasions (fairly regularly) I have done it, I have found it helpful (and sometimes surprising) to learn what I can do better and/or how other mediators in the lawyer’s experience approach the same issue in a different manner,” Mills said.
“Of course, fellow mediators are also happy to share war stories of their mediations and the different techniques and approaches which can be adopted, but usually, the more insightful feedback comes from the people who have participated in a mediation you have run.”
Mastering decision making
A pivotal element of the mediation process is the decision-making stage, during which lawyers assist clients in evaluating settlement offers and determining whether to accept them or pursue further litigation.
Lancken pointed out that many lawyers fall into the common error of evaluating a settlement offer “with the outcome they might achieve if they win the case”. However, he clarified that such a comparison is “not helpful when weighing up whether an offer is ‘in the range’”.
“The decision that a client must make every time an offer is made is the same, namely: ‘Is this offer better than continuing to pursue (or defend) this case?’” Lancken said.
To effectively assist clients, Lancken expressed the necessity for lawyers to acquire the skills required to provide transparent, honest evaluations of the risks associated with pursuing further litigation.
“Lawyers need the skills to explain the uncertainty of the course and outcome of litigation, the costs, and benefits, not just in money terms of ongoing litigation.
“It is the advice about what the future of a case looks like that is most helpful in assisting a client to decide whether to say yes to an offer,” Lancken said.
Journal your thoughts
Mills also recommends that mediators at all levels should keep a journal to document each mediation experience.
He explained that this approach is beneficial as it can provide a valuable record of the lessons learnt and the progress achieved throughout the mediation process.
“Over time, a reflection on the journal entries of mediation experiences and lessons will enhance your mediation skills and outcomes.
“As well as revealing patterns (good and bad) that can prove insightful for the tweaks and adjustments, which you can (and should) make to your performance and approach to mediation,” Mills said.
