I have my own mediation style. It works.
I meet tons of smart lawyers, and I like to be educated on how they plan to prevail at trial.
I like to meet people. I like to hear lawyers explain their cases, and I appreciate honesty. I don't engage in touchy-feely mediation approaches. I don't do joint sessions at the start where the lawyers pound their chests.
I like to sit down and listen to your client. Many times these folks have never had anyone listen-- really listen-- to them. And I like to find out about people. Cannot dive right in to making recommendations without knowing the person.
Unwilling to discuss issues
Discuss issues- "I don't want to hear the other side's arguments." Use another mediator, a message carrier. Understand that lawyers are usually poor at predicting trial outcomes, and their clients are worse. Simply too close to the subject to be objective. Independent research proves it. "We're not here to listen to you." Paul Felt walked out.
I know what's to be shared and what isn't. "Please do not share this mediation brief with the other side." Well duh, I am sure glad that you told me. Otherwise, I would definitely have made a copy for them and handed it right over. Please do not insult my intelligence with such inanities.
This is your best chance for persuading the other side. You want the other side to be educated and, even more so, their clients. Why then the reluctance to divulge anything???? Bad tactics.
Unpersuasive advocacy is "we have a perfectly wonderful case, we have no weaknesses, yada, yada." And you agreed/asked for mediation why?
I long ago gave up on getting an honest mediation brief that discusses your weaknesses. Why? Do lawyers really think this won't come out at trial? If, then why not disclose and deal with it up front?
There's worse things than a trial. I don't push for settlements for the sake of settlement. I believe too few cases are tried. However, I also think that lawyers and their clients often have an unduly rosy picture of their chances for success.
I push toward what I think is a reasonable number. If the defense is too low, I won't push the plaintiff to take it. Your case is one among many, and I need to maintain my credibility for both the defendants and the plaintiffs bars- I do that by never pushing a defendant or a plaintiff toward an unreasonable settlement.
Opening sessions-- if I do them at all-- will be limited to meet 'n greets. I do not allow opening statements from lawyers. These have nearly always proved to be useless-- or worse, so I stopped doing them years ago. The usual reasons certain attorneys want them:
1. An inflated view of their own persuasiveness: "I just need to explain it to the other side's [adjustor/client/lawyer], and then they will be convinced to settle on my terms." I occasionally encounter such heroes-in-their-own-minds. Trust me, you will persuade no one. If they only knew what the other side says about how they came across. People are not in a psychological state to listen and to be persuaded at this stage. Anyone who believes this is absolutely the lawyer that I do NOT want speaking to the other side at the start of the mediation; it will take me hours to undo the damage, if I can do so at all.
2. A desire not to have the case "filtered" by the mediator.
3. An excuse for showing off to the client.
4. An excuse for an unprepared mediator who has not done the homework and needs to be educated.
5. To convey expressions of good will or regret. These platitudes are normally insincere, "we feel your pain."
But listen, if you believe that opening statements are a necessity for you, feel free to use another mediator. I have all the work I need, and I won't be offended. (Indeed, I will probably be happier.)
Fighting the mediator
I don't care if you disagree. Indeed, I enjoy it. That's fine, and I can be convinced otherwise. Do not fight the mediator! I understand have to show off a bit at the start. I am good at reading people.
Do not insist on over-lawyering the mediation agreement.
We're done. I believe you. So don't say you're done unless you are. "Absolute final." And then a week later- no credibility with me, ever.
Wasting time and games
Ridiculous demands. Anchoring? Case value is not going to change. Only making it difficult for client to accept. Life care plans.
Ridiculous offers. $5,000. Don't waste my time.
Do not dump files on me
Liens need to be determined, esp. governmental
Special damages need to be determined
"Frank said . . ." Drives me berserk when use me as a lever to attempt to settle a case. What this means is that I will never again give you an evaluation, since I know that you are not hereafter to be trusted to keep confidences.
I believe in taking the time necessary. However, I am appalled when I hear of mediations with only two rooms involved going all day, or into the night. I tend to get the point by 1 pm. I like to be persistent, but if you tell me you're done, I will take you as an honest person.