Ever wonder how your behavior in a mediation stacks up against other attorneys? We sat down with three of our senior mediators and arbitrators — Hon. William E. Gomolinski, (Ret.), Hon. Kay M. Hanlon, (Ret.) and Hon. Jerome M. Orbach, (Ret.) — to discuss good and bad habits attorneys exhibit during mediation.
What are some good mediation habits exhibited by attorneys?
Judge Orbach: I have seen some attorneys prepare incredible submissions. They shouldn’t be afraid to include in their submissions some transcripts or medical reports. If counsel draws conclusions in submissions, they should have documentation to back up these conclusions, and I appreciate when attorneys do that. I also think the timeliness of submissions is incredibly important so that the mediator can thoroughly examine all sides of the case. Delivering timely, thoughtful submissions is a very good habit.
Judge Hanlon: I completely agree. I’m big on submissions, too. I would add that coming prepared is the best thing attorneys can do when entering mediation. Attorneys should get in the habit of prepping for a mediation with the same thoroughness as they would for trial. However, counsel need to remember that in mediation they are preparing to negotiate with the other side. Mediation advocacy requires a completely different mind-set from advocacy in litigation.
Judge Gomolinski: An attorney also needs to be honest and realistic about the positive aspects and negative aspects of their case in mediation. Counsel who are forthright with the mediator make the mediator’s job easier.
On the other hand, what are some bad mediation habits exhibited by attorneys?
Judge Gomolinski: Making a misrepresentation as it pertains to depositions or positions is a very bad habit. When you come to mediation, both parties are here for certain reasons, and those reasons revolve around the strengths and weaknesses in each other’s cases. Misrepresenting anything is bad form and can quickly derail negotiations.
Judge Orbach: Absolutely. There’s also the management of client expectations. Many times, we can reach a good number, but the client’s expectations have been raised so high that the attorney implores the mediator to lower those expectations and help the parties close the deal. It’s something that the mediator readily accepts but it can extend the time of the mediation. Giving a client unrealistic numbers before the mediation is a habit to avoid.
Judge Hanlon: I couldn’t agree more. It’s also important for attorneys to respect the process and come to mediation for the right reasons. We’re here to assist you and will do anything in our power as mediators to settle your cases. Don’t get in the habit of coming to mediation for mere ‘fishing expeditions.’
Judge Orbach: I would add that punctuality is also very important. Try to be on time. Many mediators have time constraints and you don’t want to cut into valuable time needed to settle the matter. When attorneys or clients are late, it can put a negative spin on the mediation right from the beginning.
What can be done to mitigate bad habits before entering mediation?
Judge Hanlon: Mediators can assist with this. Pre-mediation contact is incredibly helpful in catching problems and bad habits before they occur in mediation because it gives the mediator a chance to address them in a more relaxed setting. The attorney needs to be prepared for that initial phone call and make the mediator aware of any past or potential issues. For example, an attorney may tell the mediator in a separate call that she is concerned that opposing counsel will try to make an argumentative ‘closing argument’ during opening comments. The mediator may choose to lead a discussion during the pre-mediation phone call with both sides regarding opening comments, how to make them and whether the parties should do them. The more information counsel can give the mediator ahead of time, the better prepared he or she will be for the actual mediation.
Judge Orbach: I agree. A lot of it is organizational. Most bad habits in mediation can be overcome with proper organization and communication.
Judge Gomolinski: Learning more about the mediation process will reduce the chance for developing bad habits. It is also important to educate your client before the mediation about the process. ADR Systems provides a mediation brochure that walks the reader through the mediation process step by step.
Judge Gomolinski has conducted more than 1,000 settlement conferences while on the bench. He has a large breath of experience and a keen understanding of a wide variety of personal injury and commercial issues. Judge Gomolinski is praised as a bright and hardworking neutral who will stay the course to bring parties to resolution.
Judge Hanlon 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. Counsel who appeared before Judge Hanlon found her to be perpetually prepared and ready to listen attentively.
Judge Orbach has extensive experience in the successful resolution of highly complex, multiparty personal injury and commercial matters, such as product liability, construction, real estate and nursing home disputes. He is known for his tenacity, integrity and creative settlement approaches.
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