Preparation for mediation

Suggestions for clients

Based on a memorandum to clients prepared by D. Smith of Leaper & Smith Associates at Law. Used with permission.

Here are some suggestions to make the best use of mediation to help you help yourself reach a solution that works.

1. Be prepared. Review important issues and facts before you arrive. Be sure that the other party (or his or her lawyer) has all the information you will be relying on in advance of the mediation. Be sure you have all the facts and information you need to make a decision. If not, let your lawyer know. Mediation is most effective if everyone knows the facts in advance and has a chance to think about those facts before meeting.
   
   
2. Consider your options. Think about a range of settlements that will meet your needs. Think about the range of options the other party might be prepared to accept or offer. Mediation offers the opportunity to resolve disputes in more creative and flexible ways than can a Judge. Don't set a bottom line. You are attending mediation so the other party will re-evaluate his/her case and seek settlement options. You should be prepared to do the same.
   
   
3. Know your legal costs. Know what further legal costs may be incurred by you if you do not resolve the matter at mediation. The cost of settling early may be an important factor as to whether or not you wish to resolve the matter by way of mediation. Further negotiations between counsel or further litigation can be very costly.
   
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4. Know your case. Be sure that you fully understand through discussions with your lawyer what is the possible range of outcomes if you do pursue litigation or other options. Ask your lawyer to give you a realistic assessment of risk and to advise you of the possible good outcomes and the possible bad outcomes of failing to settle.
   
   
5. Know your lawyer's role. In mediation, he or she has a different job than when in a courtroom. What you want is to convince the other party to accept a settlement you can accept. Your lawyer will want to keep the lines of communication open. Acknowledging the other party's strong points and holding back on statements that might offend the other party are good tactics on your lawyer's part.
   
   
6. Participate. A significant part of the mediation is discussion between the parties as assisted by the mediator. Lawyers have an important role to play, but often it is the clients' participation that makes the mediation successful.
   
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7. Focus. Be clear about your concerns, your needs, and your objectives. Be prepared to discuss these. This type of information assists the other party to formulate settlement offers that satisfy your objectives.
   
   
8. Trust the mediation process and the mediator. The process may seem foreign to you. It may be different than other negotiations you have been part of, but remember that the mediation process is a proven way to resolve disputes.
   
   
9. Listen carefully and respectfully to the other party. Think about how you listen. Let your body language tell the other person you are prepared to listen and prepared to discuss.
   
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10. Speak carefully and respectfully to the other party. Be assertive in stating your concerns and viewpoints, but avoid language that will antagonize the other party (e.g. "bottom line", threats, accusations, sarcasm). You will be more persuasive if you are hard on the problem but easy on the person. Even if you do not feel that you are to blame in this matter, this is a good time to ensure that you communicate in a positive neutral way so that you can achieve what you want -- a settlement.
    
    
11. Be willing to persuade the other party about the sensibility of your position. Look for outside information that the other side will respect that supports your viewpoint. Your lawyer will provide one form of outside information, namely, what courts have decided about similar cases. Think about what your family's traditions or practices were when you were all together or your spouse's family traditions or practices were. Think about what other families that you both respect have done in similar situations.
    
    
12. Be open to persuasion. Be on the lookout for creative solutions. Part of what makes mediation successful is that people find solutions no one has thought of before. To do this you must go to mediation with an open mind.