The Concise Guide to Mediation Preparation
June 19, 2020
Are you getting ready to mediate? Or are you proposing mediation to your client or your opposition? Increase your likelihood of success in mediation by fully preparing yourself and your client. Consider the following list of mediation preparation ideas and you will be more prepared than ever before to succeed in mediation.
Orient Your Client — Does your client know you are talking with the other side about the possibility of mediating the dispute? Make sure your client signs off on the idea of discussing mediation. If you don’t, you may risk your client thinking you have somehow compromised their position.
Prime the Mediator — Proactively communicate with the mediator during pre-mediation planning. This is your chance to shape the mediator’s understanding of the dynamics of the dispute and to make sure your agenda for the mediation is well understood by the mediator.
Prepare to Advocate — This is not the same presentation you would make at trial, but needs to be sufficient to demonstrate your likelihood of success at trial. While mediation advocacy is not the same thing as litigation advocacy, you need to be prepared. Understand the facts of your case. Avoid leaving a poor impression on the other side and on the mediator if your command of key facts and issues is halting or incomplete.
Anticipate the Opposition — Prepare to observe the other side’s case. Take note of their strengths and weaknesses on the law and the facts, predict the demeanor of the opposing party, and the impression likely to be made by their witnesses.
The Last Mile — Be ready to jump over any final hurdles to settlement if you get close. These issues can prevent a mediated settlement from being finalized and can include items such as existing liens on potential settlement amounts, bankruptcy filings by relevant entities, and rights or interests of non-parties to the dispute. Preparing for these issues can take different forms. Sometimes the solution is to add an additional party to the mediation. In other situations, mere acknowledgment of the issue is sufficient.
Show and Tell — Prepare helpful exhibits, including charts, expert materials, and important cases and/or other governing authority.
Know Your Priorities — Be ready to evaluate settlement offers. Understand the moving pieces from the perspective of your client. Where there are complex finances involved, be ready to model creative settlement ideas.
Have a Plan — Articulate a mediation strategy. This requires a full understanding of your client’s expectations and interests, as well as a nuanced understanding of the interests and position of the other side. Consider all of this information in concert in order to formulate your strategy for mediation.
Prepare Your Client — Explain the mediation process in some detail. Discuss the strengths and weaknesses of the case. Anticipate the approaches the other side may take. What if opposing counsel is aggressive and blunt? Will the client be surprised if counsel are cordial with one another? How can you encourage your client to distance themselves from taking negotiations personally? Discuss the range of anticipated settlement options. Project and discuss possible questions that the mediator may ask.
It May Be a Marathon — Anticipate the changing pace of mediation. Counsel and the client may need to ride the waves of the progress of the mediation. At times it may seem that only one step is taken forward for every three steps away from settlement. Clients may be surprised at the pattern of offers and counter-offers.
Prepare to Compromise — Counsel and the client are wasting everyone’s time and money if they arrive to the mediation without the ability to authentically negotiate the core issues in the case.
The Who — Invite the right parties. Ensure someone with authority to settle attends the mediation. Consider insurance carrier representation. Should other knowledgeable representatives of a corporate client be invited? Or would that potentially bog down the proceedings in detail?
Bring Your Best — On the day of mediation, be ready to mediate. Eliminate distractions. Have all of your materials together. Adopt a mindset that fits with your mediation strategy. Bring the full value of your knowledge, experience, and preparation to bear.
Want more mediation tips?