Mediators rarely have the ability to control the timing of mediation. If one of the parties does not seem ready to settle, a mediator can suggest the further exchange of information and that the mediation be continued at a later date. Unfortunately, this is often not practical. Once the parties have decided to mediate, at least one of the parties is likely to view mediation as a one shot proposition. With this reality, the parties and counsel need to be as prepared as possible to move forward.
Although every person is different, there are certain patterns, or types, that one often sees in client representatives for mediation, which, in turn, present different needs for effective mediation preparation. Counsel need to be sensitive to these needs and client representatives may wish to engage in some candid introspection so that they recognize the information they will need to move forward. There is no right or wrong here, but simply a recognition that people are different.
1. The Pragmatist. This representative views litigation as a reality that should be resolved as quickly as possible. Once a pragmatist has the big picture, the settlement range becomes clear. Pragmatists will not insist on having every last piece of information and make decisions easily. Pragmatists are among the easiest representatives in mediation, although they may become frustrated if the other side is not equally ready to move forward. A pragmatist will be ready to mediate early in litigation, or perhaps even in advance of litigation.
2. The Stickler. A stickler wants as much certainty as possible before making a decision. Certainty means information and proof. Sticklers are openly skeptical of the opposing party's case and will insist that the opposing party be put through the paces to prove its position. Sticklers tend to identify strongly with their side and are reluctant to accept any possibility that their side might not prevail. Sticklers can be difficult in mediation, but, on the other hand, their approach can sometimes be effective. Sticklers will generally not be ready to mediate until a substantial amount of information has been exchanged, which generally means after discovery in the litigation.
3. The Procrastinator. A procrastinator is reluctant to make a decision. As such, it is generally fine for a procrastinator if the litigation runs its course for a while. Many procrastinators are really trying to avoid being second-guessed by others in their company. Procrastinators tend to need information, but they also need buy-in from their superiors on any settlement decision. Counsel need to make sure that the information is provided and that any necessary approvals in the chain of command have been obtained. Procrastinators will often not be ready mediate until late in the litigation process. However, if necessary approvals can be obtained, they may be prepared to move forward at an earlier time.
For counsel, the key is knowing the client representative and the client. This is not always as easy as it sounds. Asking questions such as "what information do you need to move forward," and "what would you view as a win" can help. As always, being a lawyer is at least as much an art as it is a science.
For client representatives, some candid introspection may be in order. If you do not feel ready to move forward, tell your counsel and let counsel know what more you need to make a decision.
Again, there is no right or wrong here. We are all human, and all of us probably have a bit of the pragmatist, the stickler, and the procrastinator in our DNA. Knowing your needs and tendencies (or those of your own client) will help prepare for (and time) a successful mediation. To quote Adam Smith: "The first thing you have to know is yourself. A man who knows himself can step outside himself and watch his own reactions like an observer.”
In addition to knowing one's self, one has to make a judgment about the other side and when it will be ready to mediate. If one side is represented by a pragmatist and the other by a stickler, an early mediation is likely to fail because the stickler will not yet have enough detail to go forward. A candid exchange between counsel can help address this issue, but, again, doing so is as much an art as it is a science.