Note Taking During Mediation – Best Practices

Of course you want to take notes during mediation. You want to record new information as it emerges. You need to keep close track of demands and offers. But participants’ note taking could take away from the value of this mediation.

Don’t Get Distracted
Currently, most mediations happen over Zoom or a similar app. How many devices are you working at once? Tapping your notes on the same device that is hosting the video could be difficult.

You can be so busy trying to run multiple apps at once that you are paying more attention to the technology than to the negotiation. You can lose your train of thought. You might accidentally close the internet connection and stop participating. This can appear disrespectful or possibly incompetent to others, including your client and the mediator.

Using multiple screens can help. So can using separate devices for the meeting and your notes. If you do take notes electronically, make sure your keyboard use is silent.

Or maybe you should just use paper.

I take notes on a legal pad. Because I need to keep clear who said what, I divide the page vertically. I note everything the claimant puts forth on the left, everything from the respondent on the right.

Note that the area opposite each side’s communications is blank. This preserves the sequence of information disclosures. The image gives you an idea how this happens. You can see that Plaintiff went first. Only one side is putting forth information at a time; the empty space on the other side is blank to reflect that.

Appropriately, participants change their positions during mediation. My notes let me easily see what disclosure elicited what response.

Getting to Settlement
Some negotiation participants are so busy thinking of the next thing they want to say, they aren’t listening to others in the conversation. Good negotiators take advantage of mediation to elicit as much relevant information as possible.

In joint sessions, particularly when mediation occurs in person, visible notetaking on a device might distract or even intimidate an unsophisticated party. Certainly, an attorney can counsel their client to overcome any such issues: “I’m talking notes, too. Notetaking is good. It shows the note taker approaches the negotiation seriously and wants to create an accurate record.”

Whether you take notes electronically or on paper, if you need to note something immediately, don’t be afraid to reflect (loop back) what you have just heard and then take a break. Say, “Give me a second to write down this information.” You need to be listening, not making a note, as the speaker continues.