1. Basics of Effective Mediation and Mediation Advocacy
1. What is mediation and why bother?
A. What mediation is: Mediation is a form of negotiation where the mediator, who is trained in
the skill, facilitates a structured negotiation during which the parties can see the case through
the eyes of a neutral, and agree to resolve the dispute in a way they can each accept. Unlike
arbitration, where the arbitrator sits as judge and jury, the mediator has no authority to impose
a result. If the mediation fails, the parties resume trial preparation. In fact, mediation may
proceed while trial preparation is ongoing.
B. Why mediation is attractive: Saves cost in that the case ends with an agreement, avoids the
uncertanty of the litigation process, ends the case with finality (no motions or appeals), the
entire outcome is confidential, no judgement imposed against a party so long as the
mediated agreement is adhered to, and creative outcomes are feasible, possibly avoiding
payment and resulting in future business. Maybe most important, saves aggravation.
2. When to consider mediation and should every case be mediated?
A. Considering mediation at every stage is wise, but there is a point before which mediation
should not be pursued: The litigator needs to understand the case and that requires study
and probably discovery. If the case is needed to establish precedent, or if the other side or
your client is so convinced of his or her correctness and is unable to consider weakness in
their case, then mediation may be a poor choice (but note that a mediator can often
penetrate the wall of absolute conviction). Another example of a case that ought not be
mediated is if there is a need for an injunction to prevent a wrong-possibly a trade secrets
case. Compromise in such a case may not be appropriate.
B. If mediation makes sense, then there may be no need to file a case unless the impending
day in court is important. In fact, in some cases the interest of the parties is better served
with no case filed, as with a family business. Generally, the earlier in the process the
better. Avoiding possibly months or years of cost and worry are worthwhile benefits
where feasible.
3. How mediation works:
Mediators speak of evaluative (discuss the legal and factual issues), facilitative (discuss the goals
of the parties) and transformative (create an environment that facilitates discussion between the
parties and ask questions designed to open doors). Personally, I find that a combination of all

2. methods works best. I think that mediating with a focus on legal rights, risks, parties’ goals and
good communication gets the job done in almost every case.
Typically, and often following some telephone discussion between the mediator and counsel, the
mediation session starts with a joint session so that all parties can hear the opponent’s
perspective. The mediator then asks the parties to take separate rooms so that caucus discussion
can proceed. There, the mediator can explore strengths and weaknesses in a private setting. At
some point the parties usually realize reality and offer/counter-offer begins. After agreement is
reached, the mediator may draft a very short memorandum of the agreement that the parties’
lawyers later turn into a full settlement agreement and agreed order.
The skilled mediator does not coerce the parties to settle the case. He or she should recognize
that there is merit to each side’s case, but no case is perfect. Reasonable discussion of the
imperfections and the costs of future events are all the mediator should do. No mediator should
become too strident in evaluating any party’s risks.
There are cases where caucus is not used, such as a family business dispute or a divorce case. In
those cases, the parties will have to “live together” and secrecy can be a problem, thus most
discussions are in joint session.
Is some cases there is no joint session, especially where parties’ tempers flare easily and no
rational discussion is likely, except in caucus. I ask the parties’ lawyers if that applies.
4. Confidentiality:
Mediations are settlement discussion subject to a few exceptions, and thus everything said is
inadmissible in court. Under the Illinois Uniform Mediation Act, the exceptions include (i)
anyone being under threat of serious harm, and (ii) attorney misconduct which requires
reporting.
The mediator must also remember not to disclose confidential information revealed in caucus
discussion without permission of a party. However, if it is important information the mediator
should request that permission. The parties alone can decide this matter.
The agreement to mediate furnished by the mediator should discuss confidentiality in sufficient
detail, and should provide that the mediator may not be called as a witness in subsequent
litigation, but that he/she may disclose enough to provide a defense should he/she be sued in
connection with the mediation.
In reporting to a court, the mediator may report that the mediation did or did not succeed and
who was present.

3. 5. What makes a good mediator?
A. Job 1. is to select the mediator. He/she should have sufficient legal experience to be able
to sort out the issues and see the emotional, factual and legal issues and how they connect.
My observation is that emotional elements often outweigh the factual and legal elements.
The mediator should be able to deal with emotional elements in the case. He/she need not
be an expert in the legal elements. The mediation skill lies not in expertise in the field of
law, but in knowing how to bring parties who may be sworn enemies together. Obviously,
the mediator needs to gain enough expertise to be comfortable with the issues, and that can
come from his/her own research and memoranda supplied by the lawyers.
B. The mediator should be flexible, bright, personable, relaxed, a very good listener and
sensitive to parties’ anxiety. When the mediator listens, he/she conveys respect and
attention. The reason for careful listening is not only to gain knowledge, but also to
develop credibility. The parties are far more likely to take seriously someone who they
feel respects them and whom they like. Thus, when the mediator discusses the merits of the
case, his/her words will have impact.
C. The mediator must be patient. He/she is probably trying to move people from “I’m right,
let’s fight” to “I think I’m right, but I must admit some doubt”. That can take time, even
where the parties’ lawyers agree. Where the mediator has to move the lawyer along the same
path, the job can take even longer.
D. The mediator must be persuasive. When he/she suggests that the offer on the table is worth
considering, or that the case presents some challenges, the parties and counsel have hopefully
learned from the mediator to take those comments seriously. It is the mediator’s job to have
convinced everyone that the mediator is worth listening to.
6. Role of the advocate
A. Provide the mediator a memo of your view of the case. Request that it be kept
confidential if desired. Also, provide important discovery, copies of pleadings,
important motions and orders, and anything else you want the mediator to see.
B. Discuss any confidential information with the mediator, and why you feel you have a
good chance at trial. Brief the mediator on the status of settlement discussions.
C. Be sure that client has settlement authority. Sometimes lawyers bring a client
representative who lacks authority, but the boss can be reached by phone. I have

4. mediated cases like that, and the problem is that mediation is a process of emotional
and intellectual focus, and the person on the phone will only get a brief digest and
will not see the whole picture. The cases I have mediated that way have all settled,
but it was a prolonged exercise in each case.
D. Coach the client in a methodical presentation of his viewpoint, and discuss with
the client the fact that he will hear the opponent’s perspective. Even though such
perspective is, in client’s view, incorrect, polite listening is key to a good (and
quick) mediation. Eye rolling, interruptions and insulting remarks can prolong
the process and make the outcome less certain.
E. Remember that the mediator is a neutral. He/she wants to settle the case, and his
view may be close to that of a judge or jury. Don’t hesitate to ask the mediator to
leave the room so you may talk to the client alone. I take that as an encouraging
sign.
7. What to expect from the mediator
A. While we all have our own style, there are things every mediator should do.
He/she should understand the case, relate well to the parties,
understand their angst and allow them to express emotion in an
empathic setting. The mediator should be engaging and obviously
enjoy the meeting and the parties. He/she should listen attentively and
allow for emotion, but not concur with a party except as to minor
points. The last thing you want is a mediator who inadertantly harms
the spirit of compromise by agreeing that the party is right.
B. The mediator should not give up. In most mediations there comes a point where
the case looks hopeless. The persistent mediator finds a way through the fog, even
if it takes several sessions. Flexibility and creativity are very important in
mediation. I’ve mediated cases where the parties agreed on zero payment, but
agreed to work together on a future project as a way to settle the case.
C. The mediator should have a good sense of when to call for a few minutes break.
During that time he may want to discuss another subject, just to break the tension.
Maybe the Cubs latest achievement, some political absurdity; anything to create a
relaxed moment.

5. D. The mediator may spend time evaluating the case, probably in private discussion
in separate rooms, but he/should also explore the parties’ true interests. It may be
possible that a party can furnish something of value other than money (job or
business opportunity, recommendation, etc.) that will settle the case.
8. Ethical considerations.
Illinois Rules of Professional Conduct apply to attorney mediators even though they are not
advocates. Thus, an attorney mediator is a mandated reporter just as any attorney when faced
with dishonesty by a lawyer.
The mediator must be competent to mediate the case, and must not have a conflict or a view that
favors a particular party.
The mediator must respect the confidentiality of the parties, except as outlined above.

6. D. The mediator may spend time evaluating the case, probably in private discussion
in separate rooms, but he/should also explore the parties’ true interests. It may be
possible that a party can furnish something of value other than money (job or
business opportunity, recommendation, etc.) that will settle the case.
8. Ethical considerations.
Illinois Rules of Professional Conduct apply to attorney mediators even though they are not
advocates. Thus, an attorney mediator is a mandated reporter just as any attorney when faced
with dishonesty by a lawyer.
The mediator must be competent to mediate the case, and must not have a conflict or a view that
favors a particular party.
The mediator must respect the confidentiality of the parties, except as outlined above.