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Mediation Maven Musings: September 2024


Why Pre-Mediation Conferences Work And Why You Should Be Requesting Them


About a year ago, I attended a mediation continuing legal education course with mainly out-of-state mediators. These mediators spoke highly of the effectiveness of pre-mediation conferences and how they required them in their practices.  Curious about pre-mediation conferences, I decided to start incorporating them into my practice on a voluntary basis and see what happened. 

 

A pre-mediation conference is a separate meeting (usually a phone call before the mediation) with the lawyers from each party that lasts anywhere from 20 minutes to 1 hour for simple disputes. During this conference, each party’s lawyer can share his or her goals privately with the mediator, any client sensitivities or unique aspects of the case not usually shared in a position statement, and answer questions the mediator may have to help formulate a mediation strategy. 

 

Mediation is a process.  A good mediator starts working on a mediation strategy prior to Mediation Day and an effective mediator understands what is driving a dispute.  A mediator may learn what each party demands from a position statement, but they must understand the “why” behind each position.  A pre-mediation conference allows a mediator to ask questions that they may not necessarily want to ask in front of a party during Mediation Day, fearing that certain questions may cause a party to move away from dispute resolution.  Having an opportunity to ask the lawyer privately in advance provides key insights that a mediator can use to get to the “why” of a dispute.   Additionally, counsel has an opportunity to share specific client challenges such as a client’s lack of sophistication, unrealistic expectations, emotional obstacles, and internal budget challenges. Counsel would never include these items in a position statement, but knowing about them can help the mediator develop a strategy that avoids landmines on Mediation Day.  Finally, pre-mediation conferences allow the lawyers to tell the mediator if they have a style preference for the mediation.  I frequently ask lawyer friends what they like and don’t like about the mediators they have hired, and the answers are not consistent.  If counsel has a preferred approach, a pre-mediation conference is the perfect opportunity to bring up requests. 

 

One year later and I am sold on pre-mediation conferences.  I do not charge extra for these conferences and the results are well worth the time. I immediately noticed a difference between the mediations where the parties agreed to the pre-mediation conference and the ones who did not. There were fewer surprises on Mediation Day.  Clients seemed visibly more relaxed as I was able to ask calculated questions, and not focus on fact-finding.  Lawyers were more satisfied knowing that I was taking their concerns into consideration.  And cases were more likely to get resolved.  In fact, cases where both counsel engaged in pre-mediation conferences in good faith were 2:1 more likely to settle than other cases. 

 

Do you have a mediation case coming up?  Ask your mediator for a pre-mediation conference and let me know what you think.  Or better yet, give Mediation Maven a call!




The Fourth Quarter gets busy for everyone! Do you have a mediation you are trying to schedule before year-end? Or, perhaps a complaint that needs to be investigated? Don't forget that Mediation Maven handles both workplace investigations and mediations confidentially, neutrally, and effectively. Reach out at sasha@mediationmaven.com.

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