How to Prepare for Mediation
Many parties going into mediation feel stressed because they don’t know what to expect. Being prepared for mediation will help everyone involved in the mediation have a successful experience. The following suggestions provide a guide as to how to prepare for mediation.
1. Investigate & Evaluate
Before a mediation, make sure you know the facts and legal issues in the dispute. It is never a good feeling to be surprised at mediation by facts or legal issues you weren’t aware of, especially in front of your client. Interviewing key witnesses, reviewing all relevant documents and questioning your client’s position before mediation should ensure that you don’t get blindsided by issues you didn’t evaluate in your pre-mediation analysis. However, if you do get confronted with a previously unknown fact or issue, it is helpful to have explained to your client beforehand that one benefit of mediation is learning more about the other side’s position.
2. Craft your arguments
In your opening statement at mediation, outline your most compelling facts and arguments. However, if your arguments are too aggressive, you risk motivating the other party to defend their positions in court to maintain their reputation and pride. Conversely, if you omit arguments fearing being too offensive, your opponent may discount those arguments or believe you are too uncomfortable to make them. Consider the personality of the opposing party and the history of the relationship between the parties, to gain insight in how the opposing party will likely react to your arguments.
3. Select your client representative
In some mediations, there is only one person with the decision-making authority who can attend the mediation. However, when there is more than one person who can attend the mediation with settlement authority, it is usually best to bring someone whose actions did not result in the claim being brought. That person is typically defensive, less objective and may be resistant to settlement. It is also a good idea to make sure that the person who is most familiar with the facts is available at least by telephone, if not physically present, to answer questions which may arise. Finally, make sure that if certain settlement parameters have been set before mediation, the person who could authorize a settlement beyond those paraments is also available, if there are good reasons to exceed the previously set limits.
Another common issue which arises is when an individual wants to bring a spouse, a parent, a significant other or some other non-party with them to mediation to assist them in the decision-making process. If the person feels strongly about bringing someone with them, it will likely assist the mediation, because they will feel more comfortable with their decisions. However, they should realize that the other side need not grant their request to allow the non-party to participate. Ideally, this issue should be sorted out between the attorneys before the mediation instead of surprising anyone at the mediation.
4. Bring evidence you are prepared to share
At mediation, for every argument you make, the mediator and opposing counsel are likely to ask, what evidence supports that claim or what case law supports that argument? Sharing that information with the mediator is helpful but sharing it with the other side is more likely to impact the negotiation. Parties are sometimes reluctant to share case law, documents and witness statements fearing losing the advantage of surprise during the litigation if the claim is not resolved at mediation. That advantage must be weighed against the benefit of adjusting the other side’s perception of the value of their case and getting a better result at mediation. Especially when mediation takes place before any significant discovery, there needs to be adequate information flow for the parties to constructively assess each other’s positions and formulate responses or proposals for consideration. Those positions will always carry more weight when supported by evidence or case law for the other side to review at mediation or even before mediation. The reward of sharing information is often greater than the risk.
5. Manage expectations
Frequently parties are surprised about several aspects of mediation that experienced litigators sometimes take for granted. Mediation is a process that works best over a longer period, usually over an entire day and sometimes into the evening. When parties think that mediation will take only a few hours, they become impatient at the lack of quick progress and are more likely to want to cut to the chase. Cutting to the chase often results in impasse because it requires the other party to make one large compromise, instead a series of smaller compromises which are easier to accept. Also, it is important that none of the mediation participants have scheduling conflicts which will prevent their participation in the entire process.
On a related note, parties should understand that the first offer they receive will not be close to what they think is a reasonable resolution. It is important not to be offended by an offer they will find to be unacceptable. Parties should understand from the onset that it does not matter how the negotiations start—it is only important where they end up. Getting there requires an understanding of the process.
Being prepared for mediation helps ensure a successful mediation. A successful mediation is one in which both sides are willing to compromise and hopefully reach a mutually dissatisfying resolution.