Negotiation in Mediation
Successful negotiation strategies
First, it is important to understand what mediation is and what it is not. Legal mediation is a form of alternate dispute resolution where, through the participation of a third party termed a “mediator”, issues needing resolution are presented with the hope of coming to a settlement, making a court hearing unnecessary. While a mediator is not a judge and cannot forcibly resolve issues brought to the mediation table, he or she can facilitate compromise and guide the parties to a reasonable outcome. Studies show that, overall, mediation is faster and less costly than waiting and paying for a court hearing. Furthermore, mediation is private, the proceedings not for public scrutiny, and each party has a say in deciding the final outcome of their case.
Mediation has been used in Florida for over 30 years and in most jurisdictions is a requirement prior to a court hearing when seeking a dissolution of marriage (divorce) and when seeking post judgment modification of child support, parental timesharing (custody and visitation), and alimony. Sometimes a judge will even require a second mediation before hearing a case. Attorney Grant Gisondo whose practice is in West Palm Beach and serves Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Orange, and Hillsborough counties is not only experienced in helping clients obtain a successful mediation but is also a Florida Supreme Court Certified Civil Mediator. He has shared his views on mediation during a radio talk show, which is well worth listening to, and can be found here.
When learning what civil mediation is about and how it can work for you it is interesting to look at some successful negotiation strategies attorneys use when preparing for and representing a client at mediation.
Before a mediation ever takes place there must be preparation both in what is to be presented and in enlightening the client as to what will take place and how best to conduct one’s self. The client must give the attorney all (and this means not hiding or falsifying information) the necessary facts regarding the case, including documenting proof, when needed. Clients need to have the mediation process explained in detail as to what can and cannot or should not be done. A successful strategy for an attorney would be to provide a descriptive pamphlet on the facts about mediation so the client can take it home to study. This way there will be an opportunity to have questions answered and also for the client to realize mediation is not a time for airing resentments and anger. It will also help show the need for planning to set aside an entire day as very few mediations are finished in just a few hours. Such important facts as keeping emotions in check, being a good listener, being able to admit when they themselves are wrong and the opposing party is right, and realizing compromise means no party will have 100% of their demands met, can be reinforced with each reading of the pamphlet. This also gives an attorney a reference point for discussion.
Prior to mediation an attorney will need to prepare a well thought out position paper, which he or she should share with opposing counsel and the mediator. Being able to talk with opposing counsel and the mediator before mediation is also a recommended strategy, as all concerned will have a better idea of what is at stake. Additionally, it is important to set the actual date for mediation when both sides are ready to negotiate. Little is accomplished if either party needs more preparation time. Preparation of an opening statement is also very important if an attorney hopes to bring about a successful compromise and resolution. Opening statements set the tone and atmosphere for discussions that will follow and can show the willingness of their client to negotiate.
At the actual mediation there are negotiation strategies, which an attorney will find helpful. Having all the parties together around the table insures each person present will know exactly what is said. Even before opening statements, when emotions are often quite high, the attorneys should request a “talking about the process” with the mediator. This can help calm participants and ensure both parties understand that anger and “name calling” will only hurt the chance for resolution as well as the importance of listening to the other party’s requests while realizing each party will need to compromise in order to negotiate and obtain an agreement. As the mediation progresses, quietly reminding a client of the desired outcome stated in the initial advice from the mediator is often wise. Encouraging a client to keep talking, listening, and “never say never” will benefit all by evidencing the willingness to work things out. Attorneys will typically start negotiations high in dollars and demands but patience and a willingness to consider both sides can often bring a successful conclusion through compromise. While neither party will be “happy” they will be happier both in dollars and outcome than when a judge does the deciding for them.
Attorney Gisondo’s approach to mediation shows his ability to both represent and be the mediator. In his words, regarding mediation he states, “Offer every single case participant and issue a cost effective alternative to litigation. A successful mediation is not a comprehensive agreement but rather a process where the parties have the ability to design and tailor their own agreement to best meet their specific and individual needs.” Additionally, he guarantees that
- Each participant in mediation will be given an uninterrupted opportunity to speak his or her position.
- Each participant will be treated professionally and with respect. There will be no intimidation tactics during mediation.
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Attorney Gisondo offers a free, initial, in-office consultation where he will meet with you personally to answer questions and explain the details of civil mediation in the state of Florida. Call his office at (561)-530-4568 to make an appointment.
A final note, if you are unable to settle your issues in mediation, you still have the right to proceed to a court hearing where a judge will make the determinations, which will become your final judgment.