Most attorneys know how to prepare for a mediation, but preparation is not the only key to success. Trust, communication and patience – which our neutrals consider the three pillars of mediation – are equally important to achieving a settlement in a guided and collaborative process like mediation.
We asked several senior mediators at ADR Systems to comment on these pillars and provide insight into their application to the mediation process.
“I think the most important pillar in mediation – the one you pay attention to first, and the one the others hinge upon – is the pillar of trust,” said Hon. Kay M. Hanlon, (Ret.). “Attorneys need to trust the mediator. The best way to build trust is with pre-mediation contact. I encourage at least one pre-mediation call with attorneys from both sides, but I welcome more – as many as they want.”
Judge Hanlon explained that a mediator can build trust during these calls in at least two crucial ways: by asking clarifying questions about submissions, and by inviting counsel to discuss the status of any prior negotiations, personality problems or other hot-button issues that could impede negotiations.
Communication is the second pillar of mediation, and it can be divided into two types: communication before the session and communication during the session. As mentioned, communication before the session helps to build trust, but dialogue during the session impacts the success of mediation and the probability of a settlement.
“During the private mediation caucusing process, I want each side to tell me about any special concerns or interests their clients may have, or about any other sensitive information that could impact our success at mediation,” said Hon. Larry G. Axelrood, (Ret.). “The more detailed our conversations, the better chance we have of settling.”
“In addition to being candid with me, I ask each side to listen and be open-minded. This is particularly important in the early stages of the negotiation process. Communication involves sharing information, but it also involves listening,” Judge Axelrood explained. “Without this ‘listening’ mindset, attorneys often place hard limitations far too early in the negotiation process or become rigid, which restricts our ability to reach resolution.” Attorneys and their clients should come into mediation knowing they will listen attentively if they hope to be successful.
The third pillar of mediation is patience. It takes time for parties to acclimate to the mediation process. Most people – even some attorneys – have not participated in a mediation.
“Attorneys should be careful to avoid the impulse of outrage toward what they may perceive as unreasonable offers or demands during the early stages of the mediation process,” said Hon. Thomas R. Allen, (Ret). “If attorneys do not exercise patience, mediation may cease to be an option.”
Letting the mediation process unfold can yield many benefits for those involved, most especially a settlement. It takes time for both sides to discover more about the case during negotiations. This information-gathering allows the parties to ascertain the true value of the case. Patience on both sides, coupled with trust and a willingness to communicate openly, will invariably lead to a settlement that everyone can live with – now and in the future.
Hon. Thomas R. Allen, (Ret.) served most of his judicial career in the Circuit Court of Cook County’s Chancery Division where he settled many commercial and business-related cases. As a senior mediator and arbitrator, he stands out as an exceptionally intelligent, hardworking and even-tempered neutral.
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Hon, Larry G. Axelrood, (Ret.) has extensive experience with medical malpractice, nursing home, railroad, legal malpractice, premises liability, construction and personal injury matters. Judge Axelrood also has in-depth experience with pensions benefits and their impact on various types of cases.
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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. Counsel who appeared before Judge Hanlon find her to be perpetually prepared, ready to listen attentively.
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