Mastering Mediation: A Compilation of Tips From the Masters Themselves

  • February 07, 2024
  • Nancy Sarmento Barkhordari, Gosai Law

There are many elements to a successful mediation.  In my view, each one must be approached thoughtfully—be it strategy, planning your mediation memorandum, discussing both sides of the case with your client in advance, preparing and delivering open remarks, and coming to the table with an open mind and with practical willingness to negotiate with the other side.

In this article, I have collected tips on these very elements from the Masters of Mediation— seasoned lawyers and mediators alike. Things like what makes for effective and compelling mediation memoranda, the do’s and don’ts of opening remarks, how to prepare your client for mediation, negotiation strategy, and everything in between.

1. The Mediation Memoranda

In my view, an effective mediation memorandum begins with a compelling theory of the client’s case—one that is rooted and supported by the evidence. Once the theory is mapped out, its time to put pen to paper, so to speak, and bring your theory to life without bogging down your reader(s).

Mediator Jay Rudolph of Rudolph Mediation & Arbitration Services recommends that the memo be prepared “more for the other client than for the other lawyer”  because “you are trying to persuade the other client more than the other lawyer”.

Lawyer Kathryn Manning of DMG Advocates LLP advises:

An effective mediation memorandum tells a persuasive, clear story of what happened from your client’s perspective and [sets out] why the facts and law favour your client’s position. It is not a repeat of the pleadings, nor is it the place to put every document in front of the mediator.

The memorandum:

should demonstrate your client’s willingness to listen, to compromise and to realistically assess its position.

Jay Rudolph echoes the sentiment that only relevant documents should be appended to the memoranda.

Family law mediator, Julia Tremain of Waddell Phillips P.C. views the mediation memorandum as a work of advocacy, different than written advocacy put before the court.  She recommends that:

as a lawyer, you should work to keep your memorandum persuasive but not inflammatory (as some court documents can certainly be). Limit the brief to the actual issues at hand. Set out the evidence that supports your client and the outcome that your client is looking for. Do not waste the mediator’s time with a litany of the other side’s malfeasance unless it is directly relevant to an issue that is being mediated. Keep focused on why you are there and what you want to accomplish.  Avoid ranting about the other side – keep the focus on your client.  If you do want to go into something in detail, put it in your brief so that it is easy for the mediator to refer to.

Credibility is key to an effective mediation memorandum. In my view, this can be accomplished by making concession where appropriate. On this point, Rudolph emphasizes the importance of conceding matters that are not in dispute, and focusing instead on the real issues. He says:

concede facts that should be conceded if they are obviously not in dispute. For example, if liability is not in dispute for purposes of the mediation, the defence lawyer should say so in the memo. On the other hand, if the defence puts liability in dispute, the plaintiff’s lawyer should address the issue of liability with reference to the evidence from the discoveries and any documents. If the defence raises the issue of contributory negligence and the plaintiff lawyer agrees that there is a risk, the plaintiff’s lawyer can acknowledge that there is a risk of some contributory negligence and submit that the percentage should be small.

He adds, that “in appropriate cases, you can attach relevant cases that may be important to the issues in dispute.”

Rudolph also notes that:

[language in the] memo should be polite and respectful of the other side. Separate the people from the problem. The focus should be to respectfully point out the strengths in your case and the weaknesses in the other side’s case. It is okay to acknowledge some of the strengths in your opponent’s case.