Like all professionals, mediators come good, bad, and mediocre.  The more you know about the mediator, the better you will be able to utilize him to get the result you desire.  Always choose a mediator possessing the right qualities to get your particular case settled.  Evaluate the mediator throughout the mediation and take notes for future reference.

Evaluate the mediator’s ability to precisely convey your arguments.   Not word for word, as he must express all arguments naturally to be persuasive, but if you are pursuing a specific strategy and need the mediator to convey the essence of your arguments for a particular effect, you want to be sure he is capable of doing so.

Evaluate the mediator’s preparation.  A good mediator will not only have reviewed carefully the mediation briefs, he will have looked up cited cases, researched unfamiliar areas of the law, and reviewed what juries are awarding locally for the type of injury described.  Mediators who take that much time to prepare are generally good at arguing the merits, evidence, and jury probabilities, all of which can be very influential in getting both sides to move.  If the mediator is not fully prepared, consider that fact in your negotiation strategy.

Evaluate the mediator’s verbal integrity.  They try hard to be impartial, but some get a bit sloppy in their communication skills and tell you more than they should.  Watch closely the integrity of his communication.   If you can read between the lines and figure out what plaintiff is doing, you can bet that a sharp plaintiff’s attorney will be figuring out what you are doing as well.  This is one of the primary reasons I do not like sharing with mediators my numbers, evaluations, and anything else, more than is necessary.  Be observant of the mediator, and take nothing for granted.

Remember, the mediator is evaluating you.  He needs to quickly analyze your style, tactics, integrity, and decide whether you are a hard negotiator or a soft negotiator.  Accordingly, be friendly, but don’t give him anything more than you must to evaluate you.  Be neither talkative, nor informative, except as necessary to express your relevant thoughts and the image you want to convey.  When expressing your thoughts, be brief, and show conviction in your beliefs and numbers.  Don’t give the mediator all your thoughts at once; dole them out over the course of the negotiation.  As a negotiator, you can’t allow yourself to become predictable; remain an enigma.

Be consistent.  Most mediators are good at judging people, so you must be careful in order to retain your image and credibility.  Assure your body language matches your words, and your voice inflection matches the intent of your words.  You must be consistent to be convincing.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative