Defining When A "Successful" Mediation Occurs
By Kevin Beuttenmuller, Esquire
At Matrix Mediation we often deal with civil litigation matters that are just on the eve of trial. The obvious objective from a mediator’s perspective is to make the date of mediation the very last day of the parties’ case. That is the most common model of a “successful” mediation. However, after years of exposure to mediation from multiple perspectives I have come to the conclusion that the mere fact the case does not resolve on the specific date set for mediation does not mean the mediation session was “unsuccessful” or a failed mediation.
In fact, after months and even years of locking horns
, through their respective counsel, the mediation session may be the very first opportunity the parties have to start to decompress. Consequently, the mediation session may be the first step of ultimate case resolution either before commencing trial or even while trial is in process.
One reality about civil litigation is that each side of a case has been, to a certain extent, viewing the case only in the best light that supports their particular path to a trial victory. The mediation session may be the first time they hear (or half-hear) another perspective or another legal theory that may impact their thought process. When this occurs the participants may not be receptive to objectively evaluating a contrary point of view. In other words, the affected parties may need time to fully contemplate the implications of what they have heard at mediation. Unfortunately, for both the clients and the lawyers a good deal of this contemplation may take place days after mediation; i.e., at 2:00 a.m. when clients are awakened by thoughts of impending trial and the possible adverse outcomes that could occur.
In order to assist the parties at mediation to be more receptive to what they are about to hear from their respective advocates, it is most important for both counsel and the mediator to artfully tamp down any unrealistic expectations. The timing of the “ success” of mediation is frankly highly dependent, in part, on the pre-mediation discussions that counsel has had with their client. If the expectations for “success” are set so high or so low as to be unrealistic then the mediator is being presented with a near impossible task.
Counsel’s pre-mediation consultation with the client should include an earnest discussion to advise them that they should take into consideration that some of the favorable spin being made in the opening statement is intended for staking out a negotiating position and is part of counsel’s advocacy in support of a claim or defense. If the client has truly heard counsel’s pre-mediation advice in this regard then the mediator’s task of exploring with the parties possible pathways to an amicable resolution on the day set for mediation has a greater chance of success.
However, in recognition of the dynamic that a party may just not be quite ready to resolve matters on the very day set for mediation and the fact that mediation is “the beginning” of a different dialogue, it is a common practice of the mediators at Matrix Mediation to remain available as a mediator, at no additional cost, in order to see the case through to an amicable and “successful” resolution. After all, a “successful” mediation may occur whenever the case resolves as a result of the dialogue started before, during, and after the actual mediation date.
 Before joining Matrix Mediation, Kevin Beuttenmuller was a full time trial attorney with 29 years personal injury litigation experience. Kevin has participated in hundreds of mediation's as lead plaintiff’s counsel, lead defense counsel or mediator. He became a student of mediation processes as far back as 1979 when he became involved in community- based mediation as an adjunct to our civil justice system.