The power of imagination is especially important in competitive and uncertain situations, like litigation. Just as sports psychologists help athletes experience competition so vividly in the mind that the athlete can literally smell, hear, see, and taste the moment of victory long before the competition begins, through empathy, understanding, trust, and questions, a mediator can help parties “see” a path to resolution that wasn’t previously thought possible.

Trusting the process and the mediator, parties are able to imagine and accept settlement on terms that might have once seemed unimaginable – perhaps because they didn’t previously appreciate or know about all of the risks or prospective benefits available. Much like the athlete mentally prepared to endure great pain to win a race, parties who appreciate the opportunity mediation affords approach the session in a better frame of mind, and thus more open to brainstorming ways to resolve the conflict.

In the days leading up to a mediation session, therefore, it’s worthwhile to think of the conflict as a puzzle with pieces that will all fit in the end. And to think of mediation as an opportunity to twist and turn those pieces in all kinds of different directions until the picture is clear and a solution is found. Be a realist, but a bit of an optimist too. Channel the optimism to be imaginative and open to new ideas for ending the conflict.

Think about mediation as that point in Gladwell’s story where he leaves a few loose ends unresolved, and says, “I trust you to write the closing.” And know that, most of the time, through mediation, parties discover a way to jointly write and close that chapter in their lives peacefully and confidentially.

Investment in the process. There are several currencies at play in the dispute resolution process, in addition to time, talent, and money. Just as the decision regarding venue for a lawsuit or arbitration can significantly affect decision-making, where to gather for an in-person mediation can also contribute to the mindset one or more of the parties brings to a mediation session, especially if travel is involved.

But even local mediations can increase one’s investment to the process. For example, the time and costs of commuting to a specific location necessarily adds to the personal investment the participants make to the mediation process. Whether it is traveling 45 minutes across town in rush-hour traffic and spending more than $4.00 on each gallon of gas, or needing to pay someone to chaperone children, having to physically relocate and be present in one location necessitates greater human energy and time than simply turning on the computer, flipping on a ring-light, and clicking the Zoom app in the comfort of one’s living room or home office. 

Which leads us to the next consideration…

Commitment to the process. Once all of the parties have committed to being physically present at one location for a mediation, they have demonstrated a willingness to physically extract themselves from their normal routines and environments. By doing so, they have significantly reduced the chances that environmental distractions will interfere with conversations and the decision-making process. And, frankly, it is not as easy to quit, even if – at times during the mediation session – frustration levels are challenged. Simply put, it is much easier to turn off a computer to disengage from a stressful conversation, than it is to physically leave a room, get in a car, and drive back to one’s office or home.

Environmental control. During an in-person mediation, the lighting, temperature, ambiance, and noise levels for everyone are known, shared equally, and can be controlled. The ability to communicate – through both verbal and non-verbal cues – is not dependent upon the internet or the quality of a microphone, video or lighting sources. And everyone’s basic needs for food and drink are usually well-attended to as well.

It’s been said that environment affects how people interact with each other. Meeting in-person to discuss a legal conflict is disruptive and often feels uncomfortable to the parties. The disruption and discomfort, however, are illustrative of the kind of disruption and discomfort the parties will experience at trial – although on a lesser scale – if a settlement is not reached. As at trial, during mediation, the problem will consume the parties’ thoughts for several hours, possibly an entire day (or days). Physically removed from the hustle-and-bustle of a normal day, this kind of focus helps to clear the mind and concentrate attention in ways that are not possible when sitting in one’s office or living room staring at faces on a computer screen. In this way, such disruption and discomfort are useful to encourage a more robust discussion and analysis.

Finally, a word about health and safety. We still live in a world where social distancing is advised, among other safety precautions. If the parties wish to consider in person mediations, a conversation in advance between counsel and the mediator is appropriate to answer any questions concerning the suitability of the physical meeting space(s) and agree to other terms for the engagement.

This is why it is important to have a plan. Proper preparation prevents poor performance, it has been said. But having a plan is more than just knowing what your top or bottom dollar is.

Having a plan means having a firm understanding of the strengths and weaknesses of both sides of the case on key claims and defenses, knowing what evidence and testimony is likely to be admitted in support or defense of each, and knowing how to present this information during the mediation – either during the joint opening session or private caucus – to influence the negotiation process.

Having a plan also means being prepared to realistically discuss what the tendencies of the judge or arbitrator(s) will be for managing the trial or final hearing and knowing the general demographics and tendencies of the prospective jury pool in the venue. And, if you are a plaintiff wanting to collect a judgment (if awarded), being prepared to candidly discuss collection efforts, including taking into account the financial ability of the other party to pay a judgment, if rendered.

It’s not enough just to have a plan, however. Before the mediation give some thought to how to use the plan during the mediation session. Think reasonably and strategically about the issues and decisions that will have to be made, and how the plan will help make those decisions.

With the plan, go into the mediation knowing that when the session ends, an informed judgment and appreciation of the various and complex risks involved impacted the outcome.

Step Four:       Offer an apology, when appropriate.

We are all human. We all make mistakes.

Sometimes the right thing to do is to recognize our humanity and our mistakes and offer a friend or co-worker a sincere apology.

When an apology is appropriate, don’t make the mistake of offering a justification or saying too much. Be clear, genuine, and sincere.

In his book What Got You Here Won’t Get You There, corporate executive coach Marshall Goldsmith provides an instruction manual. Here’s how he says to do it:

              You say: “I’m sorry.”

To signal that you want to let go of the past and focus on a better future, you add, “I’ll try to do better in the future.”

And then be quiet. Don’t explain, complain, qualify, or dilute the power and authenticity of the moment.

Step Five:          Try to find ways to connect on a human level.   

How you approach this last point is optional. It is good to remember that everyone has a responsibility to the larger organization’s success and should take advantage of opportunities to connect on a human level. One way to do this is with humor, but there are other ways.

A little levity, in the right situation, can do wonders for reducing friction in a relationship and opening lines of communication. In the appropriate situation and with the right person, consider its usefulness.

For example, in addition to bringing a couple of cups of coffee, or perhaps, in the alternative, carry an inflatable bat (with smiley faces on it) as a prop. When the other person sees you carrying it, his curiosity will be triggered. He’ll wonder “why the heck you’re carrying that thing around the office.” At that point, you’ve got his attention. He’ll listen to you.

At the right time, again when appropriate, you can satisfy his curiosity in an infinite number of ways. Perhaps, you tell him you brought it with you as a reminder of something else you wanted to do or say (e.g., to invite him to a Houston Astros baseball game or calendar your kid’s t-ball game). Or jokingly tell him it was part of your “back-up plan.” Acknowledge that you don’t like these kinds of conversations and, if it didn’t go well, you were ready to offer him the option of continuing the conflict (not a real option) or an afternoon at the batting cages.  

If you’re a woman and think this last tip just won’t work for you, or maybe want some suggestions on how to incorporate levity into your professional world without compromising your brand, read What Mona Lisa Knew: A Woman’s Guide to Getting Ahead in Business by Lightening Up. Management psychologist Dr. Barbara Mackoff offers a “bold new strategy for less stress and more success on the job.”

Okay, that’s it. You got this. You don’t need me – or any other mediator – for this one.

Affords an opportunity to directly persuade through storytelling

“If you need to make an argument about an issue about which you feel very strongly, don’t use rhetoric. Tell a story instead,” says John Baldoni, in a 2011 Harvard Business Review article Using Stories to Persuade.

As lawyers, we are trained to use logos (argument by logic) to persuade dispassionate audiences, like judges. But, in mediation, there are no judges and the audience may not be dispassionate. The goal in mediation is not to win over your opponent, it is to win-over your opponent. After months (sometimes years) of competitive legal jousting, for at least one day, the parties confidentially discuss what common ground, if any, there may be to end their fight. With this goal in mind, logos alone may not be the most effective means of persuasion.

In his book Thank You For Arguing, Jay Heinrichs explains how logos and pathos (argument by emotion) combined help to win-over an audience with greater ease. Together, logos and pathos appeal to both the brain and the heart of a person, respectively. Heinrich explains that “[w]hile our brain tries to sort the facts … our heart makes us want to do something about” them. 

In mediation, the joint session presents an opportunity for disputants to use storytelling – logos and pathos – to start the negotiation. Because stories are persuasive tools, the idea is not to reduce the level of advocacy Instead, a well-told story expresses a less combative approach to the day’s agenda while conveying a contrasting point of view. It’s an opportunity to convey – directly and persuasively – to an attentive audience (the decision-makers and the mediator) a very valuable message” either: ‘This is not going to be a cake-walk for anybody‘” or positional weaknesses that reveal “just how outgunned” a party is.

Having worked closely with their own counsel in preparing for mediation, the decision-makers come to mediation knowing their theory of the case, familiar with the other side’s theory, and armed with their counsel’s opinions as to the strengths and weaknesses of the competing positions. But they may not have heard the other side’s story told the way the other side’s lawyer will tell it. In other words, they may not have heard the story in the same way they will hear it when spoken from a new voice, and perhaps told more – or even – less persuasively.

If there is a concern that the other side might use a joint session to grandstand, instead of persuade, it is helpful to prepare the parties ahead of the mediation session. Talk with them about how to interpret such behavior and remind them that they can control only their side of the negotiation. Coach them on the importance of not reacting openly or being offended. Instead, prepare them to listen closely and accept the presentation as simply another piece of information. The more information the parties have about who is “in the other room” during a mediation, the better able they are to assess responses, options, and offers in the subsequent negotiations.

Reassures the parties by serving as a substitute for “their day in court”

“Mediation is not a court, but the process can give parties a better experience of being heard than a trial,” according to Golann.

Even though mediations are less formal than trial, a joint session makes the process feel a little more formal. It allows the parties to see and hear their lawyers advocate for them, and the other side’s lawyer represent the opposing view, in front of a neutral third-party – the mediator. Although a mediator makes no decisions, by experiencing this kind of advocacy parties are assured that they are being well-represented by counsel and heard by an impartial stranger. With that assurance, the parties are in a position to spend the day discussing ways to control the future, even if it is still hard to put the past in the rearview mirror.

Opens direct lines of communication between the parties

Once a conflict escalates to a point where litigation looms, communication between the parties often starts to deteriorate or even evaporate. As part of a sound litigation strategy, months (even years) can pass during which a party has relied solely on counsel to speak for them, creating distance between the underlying stakeholders in the dispute.

The confidentiality of mediation presents a unique opportunity for parties to share directly with each other. For individuals, it is an opportunity to talk about how the conflict has affected his/her life, business, and relationships. For businesses, it may be an opportunity to signal that there are more ways than one to resolve the conflict and the benefits to keeping an open-mind about the negotiation ahead.

In those cases in which a party wishes to speak, it can be impactful. In certain cases, it can be the reason why a settlement is reached.”