Tips To Help You Prepare for Mediation

The most successful mediations are often the ones where the parties are the most prepared.  What do you need to know as you prepare for a mediation?  Here are some tips which may help you to organize your thoughts and prepare for a productive and ultimately successful mediation:

Define Your Own Objectives

Surprisingly, many people come to mediation without a clear idea of what they want to achieve.  Often, when litigation is pending, relief is requested in the form of alternatives.  To make the best use of a mediation, it is important to start with a clear understanding of your own objectives.  What is your ultimate goal?  Are there subparts or details that are important to you?  What matters to you the most?  What would your best-case scenario look like?  Set an ambitious but reasonable goal for what you would most like to achieve.  Write it down with as much specificity as possible, including all of its subparts.  Be prepared to discuss the “why” behind your “what.”  If you have counsel, your attorney is a good resource to help you with this process.

Do Your Research

Gather as much information that is relevant to the dispute as possible. For example, if a part of the dispute involves the cost of repair or remediation, obtain bids to quantify that cost.  If the value of an item or property is at issue, research market values or obtain an appraisal. If litigation is pending or anticipated, explore and evaluate the possible outcomes of that litigation and the costs involved. Ask your attorney to discuss with you the strengths and weaknesses of your case and give you a rough budget of the cost to bring your dispute to trial.

In addition to researching issues related to your own position, also seek out as much information as you can about the “other side.”  If you are seeking monetary recovery, what do you know about the party’s ability to pay?  Does the other side have stakeholders, such as investors, to which it is accountable?  What are the other side’s interests that may influence the negotiations?

Make Sure the Right People Will be Present at the Mediation

A fundamental requirement for a successful mediation is that all parties whose consent is required for a settlement be present.  Ideally, the mediation should be attended by parties with full and complete authority to resolve the dispute.  If you will be attending a mediation on behalf of an entity, make sure that the scope of your authority is clearly defined.  Part of a mediator’s job is to ensure that the necessary people will be present prior to convening the mediation.

Bring all Relevant Documents and Key Pieces of Evidence to the Mediation

Although a mediation is not a trial, it is often helpful to be able to refer to and discuss the relevant documents and evidence as part of the negotiation process.  If the dispute involves a contract, make sure that you bring the entire contract, including all amendments, addenda, exhibits, and attachments.  If there are photographs depicting visual aspects of the dispute, bring those with you.  If the dispute involves the parties’ written communications with each other, bring copies of the relevant emails or letters.  It is impossible to know in advance what factual issues may become a sticking point so, even if these materials are not used during the mediation, it is important that they be available.

Try to Separate the Problem from the People

The mindset you bring to mediation can and often will have an impact on whether you achieve a successful outcome.  It helps if each party can view mediation more like a collaborative, problem-solving process instead of just another step in a court fight. When you prepare for mediation it is helpful to attempt to separate the dispute from the people involved. The fact that mediation is a voluntary process, in which all parties have agreed to participate, suggests that those parties are motivated to resolve the dispute. This itself is cause for optimism. Try not to assume or impute negative motives to the other side. Ask questions that can help brainstorm creative solutions and understand the underlying interests that may be driving the parties’ positions.

Come Prepared to Negotiate

It is important to understand a mediation is generally a “back and forth” negotiating process.  The mediation process itself requires openness to alternative ideas and some give and take.  Mediation is not a “winner take all” proposition.  Although parties should consider the concessions they might be willing to make, they should also explore whether there is room for creative solutions.  For example, do you or the other party possess any non-monetary items that may create value and form part of the consideration for a settlement?

Try not to be discouraged if there appears to be a formidable gap between the parties at the commencement of the mediation.  Many mediations end in a resolution notwithstanding that the delta between the parties’ initial positions appeared insurmountable.  It is helpful to understand patience is a valuable asset, especially early in the mediation process.

Understand That Feedback, Even if it Is Not Entirely Positive, Is One of the Benefits of Mediation

An effective mediator must often play the role of the “devil’s advocate” in order to both understand and “test” a party’s position or belief. Understand that this is not an effort to “take sides” and that the mediator will use this technique even-handedly with both sides. Part of the process often involves conducting a neutral, objective evaluation of the potential outcomes if an agreed resolution is not achieved. The feedback a client receives during the mediation can actually be one of the most valuable aspects of mediation itself. Mediation is a learning environment. It is always helpful to learn more about another party’s position, strengths, and weaknesses, as well as your own. The range of solutions is directly associated with these factors, as well as the risks and likely outcomes available under the law if litigation is commenced or resumed.