Commentary: The ABCs and XYZs of mediation

Many of us learned our alphabet in elementary school, if not before. That same alphabet can apply to mediations. As a longtime mediator and former judge, I’d like to introduce you to the ABCs — and XYZs — or mediation. Read on for a deeper understanding of the “mediation alphabet” (with some wisdom and whimsy thrown in).

A. Alternate dispute resolution (ADR) can and does save money for litigants. Instead of spending money and time in discovery and preparation for trial, mediation can fast-track your case to find a resolution the parties create on their own. Trial courts are not as flexible, and litigants become either winners or losers at trial.

B. Best offer is a phrase that will come up in mediations at some point in time. It is not necessarily a true statement but can be an effort to move along a mediation if the process has slowed.

C. Confidentiality is one of the cornerstones of mediation. The process and the outcome cannot be disclosed to anyone — what is said in mediation stays in mediation.

D. Do it your way in mediation. Parties may want an apology or just someone to acknowledge their loss. They can get that in mediation.

E. Everyone wants to tell their story. Mediation can allow that story to be told — and heard. At trial, judges and juries only get a snapshot of a litigant’s story.

F. Freakouts do occur in mediation. Litigants and lawyers alike can hit their meltdown point in mediation. Isn’t it better to do that in mediation as opposed to trial? Freakouts can be handled in mediation by everyone taking a deep breath, acknowledging the meltdown as valid, and moving forward.

G. Gather your facts and law and present those to the mediator in a pre-mediation paper to allow the mediator to prepare for the mediation. Let the mediator know if your client has any special needs or i is fearful of the other party. This lets the mediator accommodate your client to be best of his or her ability.

H. Have an open mind in mediation. Come to the process without preconceived notions. Mediation us a creative process and gives you the flexibility to create your own remedy which may be one you didn’t think possible.

I. Internal disputes between employees can be handled in mediation. The mediator can help the employees fashion a remedy that everyone can be happy with.

J. Judges in their retired lives can be mediators — in mediation they are not judges. They are there to facilitate an outcome based on their experience.

K. Kindness matters. This is self-explanatory.

L. Listening is key. Active listening allows the mediator to find that common thread to facilitate a settlement. It also validates that the mediator is listening and attempting to understand the litigant’s position.

M. Mesopotamia is the birthplace of mediation. Mediation dates to the ancient Sumerian society of 4500-1900 B.C.; in Sumeria a “mashkim” weighed the merits of every case before it was submitted to the court. Mediation is an ancient process that has been used since then.

N. No, a mediator shall not render legal advice during mediation. That is not the mediator’s job and can be an ethical violation.

O. Opening statements by lawyers are helpful in mediation as they let the parties frame the issues of the case. At times these statements (with consent of all parties) may be given in a joint session with all parties present. (Forewarn clients that they may not like what they hear and they should not stand up and shout “liar” in response to an opening statement.)

P. Pro se mediations do happen. They can be difficult to manage for counsel and mediators; all must be mindful of the power dynamics with a pro se litigant in mediation if the other litigant is represented by a lawyer. Pro se litigants may need more time to process information and may need legal jargon explained to them.

Q. Quibbling will occur in mediation. It happens between parties and their lawyers. It happens between opposing lawyers. It happens between a mediator and any party. Expect it to occur.  It is not done to delay the mediation process; it is a part of the process.

R. Repeat the process if a mediation is unsuccessful. If mediation does not resolve a dispute, you can (if you are comfortable with the mediator) reach out to the mediator after the close of a mediation to attempt to continue the dialogue of settlement. Most mediators want their cases to settle and will continue contact in the hope that continuing conversation will be beneficial for all.

S. Scheduling a mediation is the first step to connect with the mediator. Feel free to reach out to the mediator once the case is scheduled. Open the lines of communication early and put a face and voice to who you are with the mediator.

T. Try to put yourself in the “shoes” of the other party. You can then understand the position of the other party and the “why” of the other party’s position.

U. Upon-demand mediation does exist. Mediation on demand is a modernized platform designed to deliver fast, efficient, and cost-effective mediation at a fixed price. This type of mediation is designed to resolve lower valued cases in a timely manner.

V. Venting will occur in mediation. Mediation can be a draining process. Statements or settlement offers may cause parties to vent. Let them. It is a method of coping. Mediation is the safest place to vent; better there than in a deposition or courtroom. Inform your client beforehand that this will probably occur at some point during the mediation.

W. Written signed agreements are important once a mediation is successful. The agreement should set out the basic terms of the settlement even if it does not contain all the legalese. Setting forth the basic terms of the agreement makes it less likely that a litigant will experience a case of “buyer’s remorse” days after the mediation has concluded.

X. X is a social platform so be cognizant of what is posted on X (and other social media) pre- and post-mediation. Assume your social media is being reviewed before and after a mediation; discretion is advised.

Y. Yahoo! We are almost done with this mediation alphabet.

Z. Zoom mediations are here to stay. I like in-person mediations because like the back-and-forth exercise that I get in an in-person mediation, and I like to dress up now and then.

Finally, these mediation ABCs are just this writer’s lessons learned — there is no doubt that there are other lessons yet to be learned. Keeping an open mind and approach at mediation will help you reach a settlement that works for all parties.

Judge Patricia Riehl is a full-time mediator and arbitrator who handles cases including product liability, real estate, shareholder disputes, and Title IX issues, among others. She served as a circuit judge, associate circuit judge, and commissioner in the 23rd Judicial Circuit, Jefferson County, Missouri from 1987 to 2016.