I have a confession to make.
When I was a young attorney, while I relied heavily on mediation to resolve the majority of my cases, I was not as fully engaged in the process as I should have been to get the best results for my clients.
Back then, my mindset was to limit my client’s exposure: keep my opening statements brief, avoid giving too much information to the mediator before the mediation, and be “stingy” with my use of discovery. I was reluctant to reveal too much about the strengths or weaknesses of my case for fear of showing my hand. Ultimately, most of those issues would come out during mediation or litigation anyway, but by withholding early and keeping my cards too close, I now realize I missed opportunities to achieve even better results.
If I had trusted the process more — and fully understood the real value of proactive engagement — my clients would have benefitted.
A Mediator’s Perspective
Now, as a mediator, my practice is very different. I speak with every attorney before mediation. My goal is to “read the room” — to understand the litigation climate, the parties, the issues in dispute, and the motivations and pressure points driving both client and counsel toward (or away from) settlement.
This pre-mediation conversation does far more than provide me with a summary of the facts and law. It gives me insight into the case strategy, the parties’ priorities, and the mindset of the attorneys themselves (all subject to the mediation confidentiality privilege).. I learn about the relationships at play — between opposing counsel, between attorney and client — and about what must be achieved to truly serve the client’s best interests. I also begin to identify the key motivations and incentives that may move the case toward resolution.
I have also found value in being included in private attorney-client discussions during caucus or in separate breakout rooms. While some attorneys understandably prefer to keep those conversations private, others invite me into the discussion. When that happens, it can build trust, help craft the most effective offer or counteroffer, and sometimes even shorten the mediation by allowing me to provide a firsthand read on whether a proposed strategy is likely to succeed. Inclusion in these moments can be an underutilized tool for moving negotiations forward.
The best mediations I have been a part of share one thing in common: the attorneys were proactive. They submitted detailed summaries in advance. They spoke candidly with me before the session. They kept communication open during the process, and even after an impasse, they were willing to reengage to explore resolution.
As a mediator, I want — and need — to know the motivations and pressure points of the parties walking into the room. The more information I have before and during mediation, the more effectively I can help both sides reach a settlement that works.
Raising the Standard of ADR Practice
If I could offer one piece of advice from both sides of the table, it’s this: Don’t wait until the day of mediation to start mediating. Bring your mediator into the conversation early — and consider including them in the right moments during mediation itself. You may be surprised at just how much more you can accomplish for your clients.
As the Section Chair of the Collier County Bar Association’s ADR Section, one of our primary goals this year is to help CCBA members engage in the best practices in the ADR space. That includes equipping Collier County attorneys with practical tools, strategies, and perspectives to make mediation and arbitration more effective for their clients. By starting conversations early, sharing information as openly as possible, and strategically involving the mediator through out the process, we can raise the standard of ADR practice in our community — to the benefit of both counsel and clients alike.
Let’s keep the conversation going. I welcome the chance to connect with colleagues who are interested in strengthening mediation practices and finding new ways to serve clients more effectively. You can reach me anytime at rich@annunziataresolution.com.