I was kind of surprised to learn that a “California style mediation” means going into caucus immediately and staying there until settlement or final impasse. Apparently, in the rest of the country, advocates and parties talk to each other with the direction and help of the mediator. They actually collaborate face-to-face rather than through a mediator filter. Presumably, people are not throwing books on the conference table or stomping out the door. They are actually being >gasp< nice.
One way litigators can help everyone get to settlement faster is through good faith discovery. Don’t ask for overbroad responses. Burdening the opposition only delays the litigation. Don’t copy a bunch of boilerplate objections and not provide meaningful information in your responses. Get it done in time for everyone to have parsed the information in advance of the mediation.
Actually prepare for the mediation. Every case turns on five or fewer issues. Define them, know what your evidence or the law is that makes yours a winning position. If you can define the pivotal issues, you can cogently present your case. A clear presentation of the groundwork of the case will likely endear you to the mediator.
One theory is that negotiators have gotten nicer because of remote mediation. When someone can see himself/herself close up in the camera, that person can see how ugly that temper tantrum really is—not to mention ineffectual. Unfortunately, not everyone has gotten the message.
What if past dealings block any interest in being nice to your opponent? Here is a trick. Pretend. You don’t have to feel nice—just pretend to be nice. Even if inside, you feel like you want to stab this person.