The more mediations I handle the more I learn how much mediation is a service business and the more I understand the services I can provide to distinguish my practice from that of others.
As I have said before, a mediation does not just start at the designated time and place and end when it either settles or impasse is reached. Mediation is a process that starts at the initial contact with the parties seeking my services as a mediator.
At contact I learn the names of the participants and the general nature of the dispute. As my mediation practice is out of my office with a longstanding Sioux Falls law firm after getting that information I check to see if there are any conflicts of interest: Can I truly be a neutral in this particular dispute? Assuming no conflicts exist the next step in the process is to get more information from the parties including more details about the dispute and when and where the parties would prefer to hold the mediation. One of the advantages of practicing where I practice is the availability of many conference rooms to accommodate the parties. Many times the lawyers prefer to hold mediations at my office because of the conference rooms and because it truly is a neutral location – no “home field” advantage for anyone (although I don’t believe there really is such a thing in mediation).
After those details are obtained I discuss with the parties the costs of the mediation and how those costs will be paid. I have started handling mediations on a flat fee plus tax and costs. There are two reasons for this decision. First, I have spent over thirty years of my professional life keeping track of my time is six minute increments and it finally drove me over the edge. More importantly, though, I have found that the participants like to know with certainty what this will cost them. In insurance covered matters it used to be common for the insurance company to agree to pay the full cost of the mediation as a final term of settlement. That practice has changed and is the exception rather than the rule.
The next step in the process is to send out the confirming letter to the participants along with the Agreement to Mediate. In this letter I confirm my billing arrangement and how the bill will be paid and give the participants instructions on what I would like to get from them by way of a mediation submission. It never ceases to amaze me how many people either do not read the letter I send or simply choose to ignore my instructions. Please read the letter and send me what I am asking for. It will make the process much smoother.
The next thing that I do before the actual mediation itself is to spend fifteen minutes or so on the phone with the participants or their lawyers discussing the case and the issues. I always learn something valuable about the case in this call. It also gives me a chance before we are all in the same room to start addressing the possibility of impasse and how we might want to deal with that. I believe that impasse and how to avoid it should be addressed early in the process.
I have covered the process of the actual mediation itself in earlier articles and will not go in to detail on that again. When the day of mediation has ended we either will have a settlement or not. If the case has settled at mediation I will have the parties reduce the verbal agreement to writing and I have a Memorandum of Agreement that can used to effectuate this written confirmation. I will also confirm the settlement via email that same day or at the latest the next day.
If settlement is not reached and the parties ask me to, I will stay involved in the process. Most of the time that involves follow up via email or phone. Occasionally we have reconvened for another session but I would say that is the exception rather than the rule. I think an important part of the service I provide is that continued follow up if necessary.
As always, please contact me if there are any questions.