Tips for Getting the Most Out of Mediation
February 1, 2019 3 minutes read
Consider the following tips for successful and effective mediation:
• Remember that mediation is not about right and wrong. Rather, it is about fixing the problem at hand, says Carol Barkes, MBA, CPM, a mediator and conflict resolution expert in Boise, ID. How do you move beyond this problem, or how do you fix it? Don’t get entrenched in parties telling their stories or declaring who is right and wrong.
• Focus on interests, not positions. A person’s interests are needs, whereas the person’s position is a demand, Barkes says. A patient’s position may be that he or she wants a payout from the hospital. When the hospital says yes or no, there is one winner and one loser. But the person’s interests may lie in being heard and validated. The patient may need to know that what happened will not happen to another patient, Barkes explains.
“When you start talking about their interests, what they need, there may be a lot more options to bring satisfaction other than a payout,” she says.
• Disclose sufficient information prior to mediation. The other party must know enough to be comfortable with the process, says Robert Shaw, JD, an attorney with the Smith Anderson law firm in Raleigh, NC. That usually requires proceeding with discovery enough to make sure the other side can fairly evaluate the case and be willing to accept a resolution.
“Until you have that comfort level, mediation is generally not successful,” Shaw says.
• Take mediation seriously, and devote the proper resources. Do not look at mediation as a halfway measure that you will try in a halfhearted way, knowing you can always move on to litigation if it fails, Shaw says.
• Choose the right mediator for each case. Avoid relying on a single mediator even if that person is excellent and has performed well for you in the past, says Matthew W. Wolfe, JD, partner with the Parker Poe law firm in Raleigh, NC. Certain mediators are better at addressing different kinds of disputes and will increase the likelihood of a satisfactory resolution because they have more background and experience in that specific area.
• Prepare with counsel before mediation. The risk manager or other hospital representative should work with the hospital attorney before the mediation process to establish facts, goals, and limits for the mediation process, Wolfe says. The mediation proceedings should not be the first time these discussions take place, he says.
• Limit the bluster and bravado. Even if you think you have right on your side and a strategic advantage, don’t emphasize that too much, says Gary S. Qualls, JD, partner with the K&L Gates law firm in Research Triangle Park, NC.
“One thing that can sour a mediation pretty quickly is for there to be too much saber-rattling. You want to walk the line of telling the other side how good your case is without offending the opposing party to the extent that they come out of the opening session just wanting to go home and not wanting to talk settlement,” Qualls says.
“We’ve all seen the bridge-burning attorney who comes off as too caustic and the other side doesn’t want to deal with them. That’s entirely counter to the concept of mediation.”
• Don’t be the caustic client. Just as attorneys can come off as too harsh and aggressive, so can the hospital client. For this reason, Qualls says it is usually not a good idea to let the client speak during the opening statements of mediation.
“Personalities, if too caustic, can certainly disrupt and sometimes derail mediation,” Qualls says.
• Set appropriate expectations and limits. Clients should have reasonable expectations going into mediation, and the attorneys should agree beforehand on limits to the process, says Wendy Lappin Barragree, JD, senior counsel with the Chamberlain Hrdlicka law firm in Philadelphia. She says mediation can drag on for hours and days if the parties insist on revisiting issues or expanding the scope of the discussion, or if the parties simply cannot reach an agreement.
• Be clear about confidentiality of submissions. Mediators usually require information and summary statements before mediation begins, but it should be clear whether that information will be shared with the other party.
“You can tell the judge you have this novel legal defense and don’t want it divulged to the other party, but that you want the mediator to be fully informed so the process is useful. The mediator can use that information when pressuring one side to moderate their position but without revealing what you have in your pocket,” Barragree says.
Remember that mediation is not about right and wrong. Rather, it is about fixing the problem at hand.
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