The
10 Commandments
of Mediation
(Plus one, and in no particular order)
By Louis C. Schmitt Jr.
1
Thou shalt remember that mediation is not an adversarial
process with a clear-cut winner and loser. Attacking the other side will
get you absolutely nowhere. Commenting in a joint session as to the
incompetence of opposing counsel, the weakness of the factual and/or
legal basis of your opponent’s position and boasting about how you are going
to mop the floor with them at trial begets only defensiveness from the other side.
It causes them to dig in. It begs for a counterattack. It moves everyone away from the
goal of cooperating to bring about a resolution. It does not impress the mediator —
quite the opposite. It makes the mediator’s job harder. And, believe me, that’s the last
thing you want to do.
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May/June 2015
3
4
5
2
6
Thou shalt make an opening
statement. A must. It is your opportunity to talk to the mediator — and,
more important, to talk to the other side
— about your position. Be informative. Let
your client participate. The parties themselves often
want and need to be heard. You only get one chance
to make a first impression, and this is it. Acknowledge the other side’s position.
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May/June 2015
Thou shalt be
respectful. Treat everyone
involved with respect. Be polite.
Be courteous. Be helpful. And
respect the process itself.
Thou shalt be forthright. Everyone involved in the
mediation must be able to rely
on what you say. If you say you are
at your bottom line or top dollar,
you’d better be.
Thou shalt listen.
This is really what mediation
is all about, both sides listening
in a way that causes realization
of the true nature of each party’s
real interests.
Thou shalt be
prepared. Know your position
and the reasons for it. Know
going in where you can settle —
and have a strategy for getting
there. Failing to be prepared
burdens everyone else and wastes
the time of the other participants.
9
Thou shalt
submit a
mediation memorandum in
advance of the mediation session.
It is helpful to the mediator. It saves
time. Enough said.
“And another thing. …”
7
8
10
Thou shalt make very
clear what is to be kept confidential. Self-explanatory.
Thou shalt
have settlement
authority. Don’t leave home without
it. Otherwise, what’s the point?
11
Thou shalt consider
a sincere apology. Nothing
soothes like this balm. ⚖
Thou shalt
demand a
memorandum of understanding in
the event of a resolution as to any
significant issue at the mediation. Get
at least the most pertinent terms
in writing prior to the conclusion of the
mediation session. Memories can be faulty.
There may be buyer’s remorse. Lock it down.
•
•
•
•
•
Louis C. Schmitt Jr. is the founder and
principal of ADR Solutions (www.
adrsolutionspa.com) in Duncansville,
Blair County, through which he
provides mediation and arbitration
services. He is certified in mediation
and advanced mediation and is a
court-approved neutral mediator
in the U.S. District Court for the
Western District of Pennsylvania. He can be reached at lou@
adrsolutionspa.com.
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The Pennsylvania Lawyer
38
May/June 2015