Your mediation reputation matters

There are countless mediation courses, seminars, and conferences that teach lawyers effective techniques and best practices. But rarely do they discuss something equally, if not more important: your reputation as a negotiator. Since 90-95% of civil cases in California settle before trial, your mediation reputation carries just as much weight as your trial reputation.

The way we were

Before March 2020, most mediations were conducted in person, with all parties physically present. Even though parties often spent the day in separate rooms, lawyers still had those subtle moments of connection with opposing counsel in the hallway, during a snack break, or simply passing by. There were handshakes, eye contact, the occasional shared laugh. Civility and mutual respect were baked into the process.

Mediators would sit beside lawyers and clients and build a rapport, while discussing facts, law, and the intangibles. It felt collaborative. And when the case finally settled, there was often a moment of human connection: a handshake, a sigh of relief, maybe even a hug. These moments fostered client satisfaction, professional camaraderie, future referrals, and opportunities to mentor junior lawyers.

Little did we know those days would be so fleeting.

The new normal

Post 2020, the legal landscape has shifted. We adapted and moved to virtual platforms. Business continued, and we discovered new efficiencies. You could juggle multiple files, mediate two cases in a day, pick up the kids and be home for dinner. For many law firms, business has boomed.

And statistics show that settlement rates remain the same, whether virtual or in-person. But there's a hidden cost that we must acknowledge.

The price of convenience

Virtual mediations may be efficient, but they come with their own challenges. An eight-hour Zoom hearing can feel like 20. Disengagement, frustration, and miscommunication can sneak in and derail a process that's already emotionally and mentally taxing.

Mediators report more frequent incidents of participants reacting poorly to opening demands. Sometimes, this necessitates muting the party; other times, they find someone has simply logged off. There's also a growing expectation of a mediator's proposal if a settlement isn't reached. If the proposal is too early and the number isn't "right," it will be rejected, and it can hurt future negotiations.

What mediators want you to know

Having canvassed mediators across the country, here are the top five most common behaviors that can negatively influence your effectiveness (and your reputation):

Prepare in advance. Don't send 1,000 pages of exhibits the night before the mediation. This puts a strain on the process before it has even begun.

Read and consider the mediator's brief instructions. It is deeply appreciated when lawyers comply with their page limit and timelines. It helps mediators prepare efficiently so you can hit the ground running.

Position your camera so your full face is visible. You want to look the mediator in the eyes, and body language can say a lot.

Provide the mediator with full names and contact info for your side. You want the mediator to know who the decision-makers are.

Don't yell, curse, or lose your cool. Period.

Conversely, consider these five tips to help ensure mediation success and build your reputation:

Conduct a pre-mediation call via Zoom if you haven't worked with the mediator. This will help you learn their mediation style, allowing you to prepare more effectively.

Prepare and have your client present the same way you would for a court proceeding.

Civility is just a buzzword unless you practice it in both words and actions. Exude professionalism and respect always.

Stay away from "best and final" numbers. A case can turn at any moment; you never know what can happen and when it makes the most sense to settle. A mediator's proposal is a last resort, not a given.

Trust the process! Your mediator knows the timing and range for the proposal to be successful.

Reputations are built over time

Although we are a part of the biggest legal community in the world, you'll see the same opposing counsel and mediators again and again. Your reputation matters. Be the lawyer who follows through, who communicates clearly, who shows professionalism, even under pressure. It makes a difference. Need an extension? Rescheduling a date? Professional courtesy goes further when it's backed by a reputation of kindness, integrity and reliability.

Clients notice. Attorneys notice. Judges notice. Mediators notice. Over time, your reputation becomes your biggest asset.

Rosemarie Chiusano Aubert is executive vice president of business development and co-founder of Judicate West.