Mediation Beyond Omicron
Last summer, and again last fall, it appeared we were heading towards a relaxation of COVID-19 protocols and a societal re-opening. Then came Delta, followed by Omicron. Now that Omicron appears to be waning, vaccine levels are high and expanded treatment options are becoming available, governments at every level appear eager to accelerate the lifting of restrictions, with a view to a more permanent re-opening of society, in which COVID-19 is treated as an “endemic” situation.
What will that mean for mediation going forward? Most likely, in my view, it will be more of the same. This means a continuation of the almost exclusively virtual process that has developed over the last two years. I see possible exceptions mainly in situations involving those who cannot adequately navigate the virtual environment, or for larger multi-party mediations where an in person process would arguably be more effective.
The vast majority of lawyers and insurance professionals are now acclimatized to, and quite comfortable with, the virtual mediation process. They see it as effective, convenient, efficient and less expensive. Many no longer perceive the in-person experience as superior or even miss it, “Zoom fatigue” and reduced social interaction notwithstanding.
It is also likely that the migration towards half-day mediations as the “standard” format, which started before the pandemic largely for “cost containment” reasons, will become more entrenched. Unfortunately this will continue even in situations where there are likely too many parties involved (more than three) to achieve a successful resolution within such a time-limited process.
Maximizing the opportunites for a successful outcome within a half-day format requires a different approach to the process, with even more focus on preparation before the mediation, concise presentation of positions within it and more efficiency in terms of the pace of the negotiations. Here are some suggestions to make your mediation more effective:
Readiness - Make sure productions are up to date and all necessary reports to support your client’s position(s) have been delivered well in advance of the mediation. Satisfy the other side’s information requests as well. Don’t “gift” them an argument that they don’t have sufficient information.
Client Preparation - Don’t leave it until the mediation. Discuss the process and also realistic expectations/exposures with your client in advance. Have a realistic settlement range in mind. And, have a draft first offer prepared.
Mediation Memo - It should thoroughly address all the issues, but as concisely as possible. Avoid hyperbole. Also, limit the attached documents to only those which are essential to supporting your client’s case. Inclusion of entire sets of medical or financial records should be avoided.
Openings - Should be kept as brief and concise as possible. Don’t repeat the contents of your mediation memo. Highlight only the most important points in support of your client’s case. Additionally, take some time to address (and if possible refute) the other side’s position(s) vis-a-vis your client’s case.
Offers - Plan for 3 - 4 rounds of offers at most, and adjust the range of your offers accordingly. Avoid overly high/low opening offers. They should not be higher/lower than any last offer made in pre-mediation discussions with the other side.
Negotiations - Be flexible. Don’t let rigid pursuit of the “perfect”, or optimal outcome be the enemy of a good resolution for your client.