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Step by step to successful mediation

In the past several years, mediation has proved an effective and efficient method for settling lawsuits. This successful track record has captured the attention of the courts, governmental agencies and corporations. Increasingly, all are using mediation to reduce their caseload while reducing their expenses.

The practical implications of this trend are clear. Clients will ask you to represent them in mediations with growing frequency. To obtain a favorable result for clients, lawyers must master the techniques to achieve success in mediation.

There are nine steps to enhance attorneys' effectiveness when representing clients during mediation.

Understand how mediation works. Mediators act as a catalyst by listening, questioning and suggesting options during a series of joint and separate meetings with the parties and their attorneys. Mediators help the parties focus on their interests so they can craft a settlement that satisfies each party's legitimate interests.

Mediation procedures are highly flexible. Experienced mediators are adept at molding the procedures to meet the parties' particular needs. Nevertheless, most mediation will contain a few common elements.

Before mediators meet with participants, they usually request written summaries of the case from each party that include their factual and legal contentions. The most useful mediation statements also will discuss possible settlement options. In an effort to foster maximum candor, many mediators ask that these statements not be exchanged among the parties.

The actual mediation session will be divided into three stages: a joint opening session, individual caucuses with the mediator and a joint closing session. Since mediation is a form of settlement negotiation, rules of evidence and other formal court procedures do not apply. For the same reason, the proceedings are strictly confidential and cannot be introduced into evidence during any trial.

During the joint opening session several things occur: participants will be introduced, the mediator will describe the process and ensure that everyone understands how the process works, and each side will briefly describe its view of the dispute, either by the parties or their attorneys. Finally, the mediator might ask a few questions to gain a better understanding of the dispute.

During the second stage, the mediator will meet with each party and their attorney separately. In these caucuses, mediators ask additional questions and explore possible settlements. These discussions are confidential, and the mediator will not disclose to the other parties the substance of those discussions unless expressly authorized. Mediators hold several caucuses with each party.

The third stage is a final meeting of all participants, where the settlement will be memorialized in a written, signed agreement. In cases where some, but not all, of the issues have been settled, the agreement will cover only those points on which there is agreement. The remaining issues usually will be resolved through the court system. If the parties reach an agreement, it becomes a legally binding contract that can be enforced in the courts.

Understand the attorney's role. Lawyers' roles will change during the course of the process. In the early stages, lawyers are advocates, marshaling the facts and law in the most persuasive manner for the client. That role changes in the later stages, when they become their clients' counselor. Clients will need all their lawyers' knowledge and experience to help them develop and evaluate various settlement proposals.

Select a skilled experienced mediator. A bond of trust between the mediator and participants is a key component of a successful mediation. While trust develops during the process, the first step in creating that trust is knowing the mediator is well-trained and experienced in mediating your type of dispute.

Many people with varying skills and experience now hold themselves out as mediators. Lawyers have the responsibility to find a qualified mediator for their client's dispute. Look for three basic qualifications: training, areas of professional expertise and how many mediations have been conducted.

Several organizations can help in the search. The New Jersey Association of Professional Mediators (NJAPM) maintains a roster of accredited professional mediators. They can be located at njapm.org. The American Arbitration Association and JAMS also maintain lists.

Carefully select the members of your client's negotiating team. The composition of your client's negotiating team will greatly affect the outcome. The wrong negotiators will doom the mediation. Although having the right team will not guarantee success, the presence of good negotiators will greatly improve those chances. There are two essential people who must be present during the mediation.

First and foremost, the ultimate decision-maker should be part of the team. A major function of the mediation process is to educate each side about the other's perception of the dispute and about the interests involved. Decision-makers cannot benefit from this educational aspect of the process if they do not actively participate in the mediation. Your summary of what occurred during the mediation, no matter how detailed, is not an adequate substitute for the decision-maker's actual presence during the session.

Second, at least one member of the team must be thoroughly familiar with the dispute and the other necessary background information. This person will serve as a resource during the mediation in terms of providing factual information to the parties. This person also can be helpful in formulating creative solutions.

Of course, when representing an individual client, the client probably will fill both roles.

Master the facts. Since most disputes are fact-sensitive, the more information mediators have, the better they will be able to assist in analyzing your client's case and in assisting to find a workable resolution. The participants, however, are the only source mediators can tap for this knowledge. But, participants can assist mediators in understanding the facts only if they have ready access at the mediation to the necessary information. Therefore, it is important to gather and organize all relevant information well in advance.

Identify and analyze the parties' interests. The focus of the discussions during most mediation will be on how much money, if any, will be transferred to one party or the other. The parties, however, usually have other interests, too. It is important to identify and analyze these additional interests for two reasons.

First, the way in which these ancillary issues are resolved may have an effect on the amount of money required to settle the case. For example, in a wrongful termination case, both parties have concerns beyond the amount of money being negotiated. The employee may be interested in finding another job as soon as possible and in obtaining medical insurance. If the employer enhances the plaintiff's ability to find a new job, the plaintiff may be willing to accept less money. The employer may want to minimize the disruption to its operations caused by the litigation. It may be willing to pay some money to accomplish that objective.

Second, it is important to remember that mediation is voluntary. One cannot force the other side into a settlement. Therefore, the other side has to find enough in the settlement agreement to accept it. As Stewart Levine phrased the issue in Getting to Resolution: "You must stay with the perspective that it is as important for 'them' to get what they want as it is for you to get what you want. This is the thesis for Roger Dawson's work on 'power negotiating' — the most powerful way to get what you want is to make sure that others get what they want."

To know what the other side wants — and what your client can give up — requires identifying and analyzing the complete interests of all parties.

Listen actively throughout the mediation. Identify and analyze the parties' interests while preparing for the mediation. However, don't stop the analytical process there; continue it throughout the mediation session.

The other side normally will provide significant amounts of information during the mediation. Much will be relevant to the substantive merits of the case; however, you'll receive other information concerning your adversaries' perception of its interests and possible ways to satisfy those interests. Your adversaries may even identify ways to satisfy your client's interests that neither you nor your client had considered. This new information may be pivotal to success.

That information will be available only if you listen actively and openly. If you refuse to consider what the other side is saying, you will surrender some valuable insights. Moreover, you will send your adversary the message that you are not at all concerned about its interests. Most people, when confronted with such a negative response, will conclude there is nothing to gain by further discussions and will terminate the mediation.

Be objective and realistic. This may be one of the hardest things to do. Each side tends to overestimate the strengths of its case and underestimate the strengths of the other side. The mediator can assist in this. Part of the mediator's role is to assist the parties by acting as a reality check. The mediator will help attorneys see all the strengths and weaknesses of a client's case.

Reprinted with the permission of New Jersey Lawyer, December 2002

Anthony Limitone Jr. is a partner in the Morristown law firm Limitone & Hillenbrand and is accredited by the New Jersey Association of Professional Mediators.