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ARTICLES

The 10 Commandments of Mediation (Plus One)

In No Particular Order:

1. Thou shalt remember that mediation is not trial. Attacking the other side will get you absolutely nowhere. Commenting on the incompetence of opposing counsel, the weakness of the factual and/or legal basis of your opponent's position, and boasting about how you are going to mop the floor with them at trial, begets only defensiveness from the other side. It causes them to dig in. It begs for a counter-attack. It moves everyone farther away from the goal of cooperating to bring about a resolution. It does not impress the mediator - quite the opposite. It makes the mediator's job harder. And believe me, that's the last thing you want to do.

2. Thou shalt make an opening statement. A must. It is your opportunity to talk to the mediator - and more importantly, the other side - about your position. Be informative. Let your client participate. The parties themselves often want and need to be heard. You only get one chance to make a first impression, and this is it. Acknowledge the other side's position.

3. Thou shalt be respectful. Treat everyone involved with respect. Be polite. Be courteous. Be helpful. And respect the process itself.

4. Thou shalt be forthright. Everyone involved in the mediation must be able to rely on what you say. Don't bluff. It's not a game. Don't make empty threats, either. If you say you are at your bottom line, you'd better be.

5. Thou shalt listen. This is really what mediation is all about. Both sides listening to each other in a way that causes realization of the true nature of each party's real interests.

6. Thou shalt be prepared. Know your position and the reasons for it. Failing to be prepared burdens everyone else, and wastes the time of the other participants.

7. Thou shalt have settlement authority. Don't leave home without it. Otherwise, what's the point?

8. Thou shalt demand a memorandum of understanding. Get at least the most pertinent terms of the settlement in writing before the mediation is concluded. Memories can be faulty. There can be buyer's remorse. Lock it down.

9. Thou shalt submit a Mediation Memorandum. It is helpful to the mediator. It saves time. Enough said.

10. Thou shalt make very clear what is to be kept confidential. Self-explanatory.

11. Thou shalt consider a sincere apology. Nothing soothes like this balm.

- Louis C. Schmitt, Jr., Esq.