Page 43 - JulAug2019_BarJournal

ADR FEATURE

to prove their case. Both parties should have
all the information they need to resolve the
dispute that day.

Insufficient mediation statements
Mediation statements are often overlooked
by attorneys. While they spend hours crafting
summary judgment motions, opening
and closing arguments, or appellate briefs,
mediation statements are often thrown together
at the last minute, despite the fact that the case is
more likely to settle than to be won on summary
judgment, at trial, or on appeal.
Mediation statements should be both fully
developed and timely submitted.
Mediation statements are summaries of the
factual claims and legal arguments. The statement not resolved at mediation. Discuss the legal The good news is that impressions evolve and
should give the mediator all the information they arguments, what the evidence will show, why can even be overturned. While you may not get
need to facilitate the mediation. If the mediator your case will appeal to the judge or jury, why a second chance to make a first impression, you
has a strong understanding of the facts, the theirs may not, and predict the likely outcomes. can create an opportunity to change one.
law, and the parties’ arguments, then they won’t How can this be accomplished? Here are some
have to waste valuable time at the mediation Persons with authority to settle not in approaches that can minimize or even reframe
exploring these and trying to understand the attendance that false impression during the mediation:
parties’ positions. Another significant obstacle to settling the dispute Being straightforward, honest, open-minded,
Also, submit the statement to the mediator occurs when the person with adequate authority and fair. These behaviors can go a long way
well in advance of the mediation so they have to settle — or the ultimate decision-maker — is toward changing someone’s perspective.
time to read it and prepare. Again, this will save not physically present at the mediation.
valuable time at the mediation. When not present, the ultimate decision- Proving who’s right
maker is usually available by phone. However, People have an inherent need to prove they’re
Failure to discuss impasse anyone not present at the mediation can be very right. But mediation is not the place to do that.
What happens if the parties reach impasse difficult to persuade. They haven’t experienced A disputant is not going to change the other
during mediation? If impasse is reached and the dynamics of the negotiation. They haven’t party’s mind about what happened, how they
you don’t have an answer to this question, the heard everything that has been shared by the feel about it, and who’s right.
mediation will not likely move forward. parties. They don’t have a feel for what has The mediation is not about who is right and
The mediator and the parties should discuss taken place in the mediation session, so they who is wrong. It’s about the risks involved with
impasse and how it will be dealt with at the start tend to remain fixed in their position. All of litigation and the best outcome for both parties.
of the mediation. What happens if and when the these things simply cannot be conveyed over Instead of focusing on who is right and who is
parties reach impasse? What steps will they take? the phone. Also, the mediator cannot facilitate wrong, the parties should focus on what will
Will they take a break? Change the venue? Resume the mediation effectively if they cannot happen if the case is not resolved at mediation.
another day? What happens to the progress that communicate directly with that person. That’s all that matters.
was made before reaching impasse? Did the The parties, their attorneys, and the
parties reach agreement on those issues or are mediator should inquire into and identify Conclusion
they back to square one? These are the questions who has the ultimate settlement authority Every mediation will have its own obstacles. But
that should be addressed at the outset to prevent before the mediation, then make every effort knowing these obstacles and preparing for them
impasse from sabotaging the mediation. to ensure that that person is physically present at the outset will provide the best opportunity
at the mediation. for the parties to resolve their dispute at
Ditching the opening statement mediation.
Should you use an opening statement? This False impressions and perceptions
question is often debated. Let’s ask a different First impressions matter. Why? Because they’re
question. Why do disputants settle? They settle difficult to change. And they lead to lasting Aaron Schmidt is the Vice Chairman
because they determine that the proposed deal perceptions about people and their positions of Ohio’s State Employment Relations
is better than the likely alternatives. which can be an obstacle to resolving a dispute. Board, which administers the state’s
An opening statement provides an First impressions are usually made long before collective bargaining laws for public
opportunity to lay out those likely alternatives the mediation. Unfortunately, research suggests employers and employees. He is a
and show the other side what they look like. that first impressions can be so powerful that graduate of Cleveland-Marshall College of Law.
Consider using an opening statement and they’re weighed more heavily than fact. And He has been a CMBA member since 2004. He can
tell the other side what happens if the case is disputes often cause false perceptions. be reached at aaron.schmidt@serb.ohio.gov.
JULY/AUGUST 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 43