Counsel and their clients can do a lot to help their dispute settle sooner in mediation, ideally avoiding second or third sessions and the concomitant additional costs. Namely, they can enter the mediation process with an understanding of mediation mechanics, negotiate to create value for both sides, and engage in pre-mediation contact.

Understand Mediation Mechanics

When counsel and their clients understand how mediation works, they are better prepared to negotiate a settlement with the other side and settle sooner in mediation. Frequently, counsel will want to litigate their case to the mediator. More frequently, the clients for either side will come to mediation with unrealistic expectations of how the process will unfold and how their case is valued. Worse, they may expect the mediator to be a second advocate for them, an agent they are paying to persuade the other side of the efficacy of their position. None of these approaches and perspectives help a matter settle.

“Mediation is a collaborative process and the mediator is a neutral, third-party facilitator,” said Hon. Brigid M. McGrath, (Ret.), senior mediator and arbitrator at ADR Systems. “Their job – my job – is to convey demands and offers between the parties, brainstorm possible solutions to negotiation impasses or sticky issues in the case, provide candid evaluations of the parties’ cases and impress upon them the risks of litigating it if they cannot settle.”

Because mediation is collaborative and because the neutral’s job is as Judge McGrath described it, parties must actively participate in the process to resolve their dispute. Active participation means two things:

• First, a genuine willingness to patiently dialogue and problem-solve with the other side via the mediator within the caucusing process
• Second, a receptiveness to positions and assessments they may dislike

The blunt reality is that both parties will have stronger and weaker arguments for the value of damages, the theory of lability, the relevance of certain facts and more. They must be willing to listen to that truth. When parties come to mediation with a full understanding of mediation mechanics and their role in it, ready to be patient and negotiate in good faith, they are better equipped to actually settle their dispute.

Negotiate to Create Value

Mediation is a non-zero-sum game. Both sides can and do get what they want. Counsel and their clients can settle sooner in mediation by looking for ways to create value for themselves and the other side while negotiating.

In economic terms, parties can create value by looking for trades across terms in a deal.[1] For example, a plaintiff may adamantly demand a settlement sum of no less than $3 million. To make this offer more attractive to the other side, they can offer to waive their right to statutory prompt payment of the settlement, they can agree to structured payments of the settlement to help the defendant manage the cash flow more easily and they can even agree to stricter confidentiality or non-disparagement clauses in the settlement. By such a trade, the plaintiff offers the defendant a legitimate, desirable reason to buy into their settlement terms, making it more palatable and realistic – if not perfectly ideal – for all involved.

“When counsel and their clients trade across terms, they move toward the other side rather than waiting for the other side to come to them,” said Hon. Christopher E. Lawler, (Ret.), senior mediator and arbitrator at ADR Systems. “The result is a creative, problem-solving dialogue. Both sides serve themselves by thinking beyond themselves. It’s a win-win approach and can do wonders to bringing parties together quickly.”

Engage in Pre-mediation Contact

Counsel and their clients can settle sooner in mediation by participating in pre-mediation sessions with their mediator and the other side. Pre-mediation contact helps parties resolve disputes sooner in two key ways:

First, when parties pre-mediate, they can address ancillary issues that must be resolved before the parties can begin to talk about the settlement terms. Parties to complex disputes involving multiple defendants, layers of coverage and open questions about the distribution of liability among insurers require more time to find an accord before they can actually talk about how to settle the dispute. Pre-mediation contact provides parties the opportunity to disentangle these issues. From there, on the day of mediation, parties are better prepared to negotiate the monetary figure or other relief that will settle the dispute.

Second, pre-mediation contact provides counsel and the mediator with the opportunity to speak candidly about their clients, logistics and the submission. How prepared is counsel’s client for the mediation? When discussing the case, what sensitivities should the mediator be mindful of or even avoid? What information has been shared with the other side? And what are counsel’s candid assessment of their case and the other side’s?

“Pre-mediation contact puts everyone involved in the dispute on something closer to the same page for the start of the mediation,” said Hon. Kay M. Hanlon, (Ret.), senior mediator and arbitrator at ADR Systems. “This early contact allows the mediator to understand the case better — in ways the submission may not reveal — and the parties will have solved several problems that could have stood in the way of settlement — before the mediation. It gets the case settled sooner almost every time.”

ADR Systems’ Case Ambassador Program provides a formalized model for pre-mediating personal injury and commercial disputes. Parties work with an experienced mediator — who acts as a case ambassador — before the mediation to resolve behind-the-scenes issues that could impact the success of the mediation and set their case up to settle on the day of mediation. Multiparty construction, mass-tort, insurance coverage, subrogation, trusts & estates and many other types of cases have benefited from using a mediator to help resolve some of the issues before the actual day of mediation. Without going through the case ambassador process, the mediation of complex disputes can become bogged down by the very problems that could have been mitigated beforehand.

Parties Can Settle Sooner in Mediation

When parties can settle sooner, they are better off financially and emotionally. When they understand mediation mechanics, negotiate to create value during mediation, and engage in pre-mediation contact, they are primed to settle their dispute sooner than they otherwise would.

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Hon. Kay M. Hanlon, (Ret.) has expertise in resolving personal injury actions such as medical malpractice, mass torts and product liability, as well as commercial actions such as legal malpractice, eminent domain and subrogation. As a jurist and neutral, Judge Hanlon is always prepared and ready to listen attentively. Her open and friendly demeanor is known throughout the legal community. Her personality is tailor-made for her work as a mediator and arbitrator.

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Hon. Christopher E. Lawler (Ret.) has more than 33 years of experience in personal injury and commercial matters as a respected litigator and sought-after pretrial judge. As a jurist, he pretried over 1,200 cases, handling some of the largest cases in Cook County history. Judge Lawler applies his legal knowledge and his experience from decades of community involvement to his mediations and arbitrations. His volunteer service has given him important insight into the needs of a wide variety of people, helping him to better facilitate the resolution of disputes.

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Hon. Brigid M. McGrath, (Ret.) has handled complex commercial and personal injury case types throughout her 34-year legal and judicial career, including construction defect, legal malpractice, medical malpractice, insurance coverage and product liability matters. As a senior mediator and arbitrator, she is skilled at diffusing conflict and identifying root causes of disputes. Counsel know Judge McGrath will prepare thoroughly for every case and work diligently toward resolution.

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ADR Systems, It’s Settled.®

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[1] See Subramanian, Guhan, and Michael Klausner. Deals: The Economic Structure of Business Transactions. Harvard University Press, 2024, p. 15.