Howard Z. Gopman & Associates, Ltd.

Attorneys and Counsellors at Law


Mediation Tips

a. Bringing the right people to the table.   Counsel frequently overlook an essential ingredient for a successful mediation -- bringing the right people to the table. This has two aspects. First, for mediation to succeed, those present at the session should have actual settlement authority. It is therefore important to determine that all necessary parties, insurance carriers and behind-the scenes decision makers whose consent or authorization will be necessary to achieve a full settlement of the case are in attendance or are available through authorized representatives.

   Secondly, bringing the right people to the table includes consideration that those representatives with greater objectivity are more likely to be open to broader perspectives, and more creative at finding solutions. Accordingly, it is helpful to include in each side's negotiating team at least one member who is perceived by the other side as having objectivity. .

    In a commercial or corporate setting, certain enlightened companies recognize the value of including persons who were not personally involved in the origins of the conflict on their negotiating teams. The reasoning is people can more effectively represent the organization if they are freed from the burden of having to justify or defend their own past actions.

    The mediator's and parties' orientations also may affect who attends the mediation. If a narrow or compromise orientation is taken, the focus of the mediation will be on the interaction of decision makers and the presence of additional participants may be a hindrance. Alternatively, if a broad orientation is adopted with an aim to improving relationships and full resolution between and among all parties, the number of participants is likely to expand in order to include input from all those whose interests may be affected by the outcome of the mediation.

    In practice, it is generally useful to discuss in advance who the opposing sides intend to bring and seek agreement from counsel that actual decision-makers (those with authority to bind) will attend.    Cooperative problem solving by creating a think-tank atmosphere is conducive to achieving resolution at the highest level.

b. The importance of confidentiality in mediation.   In order to foster the type of productive discussion that leads to settlement, it is absolutely essential for the parties to understand that all communications they wish to keep private in caucus will remain confidential unless disclosure is authorized. This is particularly important when the parties discuss settlement numbers in the private sessions with the mediator.

   When an issue or item of information is raised in the private meeting that the party or attorney wishes to be kept confidential, he or she should immediately flag the item and inform the mediator that this information is confidential and should not be disclosed. At the conclusion of each confidential meeting, it is useful for the participants and the mediator to review what information can and cannot be disclosed.