PREPARATION IS KEY FOR A SUCCESSFUL MEDIATION
Because Mediation is an informal process, some participants fail to do the planning and preparation necessary to take best advantage of the mediation process. It is easy when you are in a dispute or litigation to believe that ultimately all is going to be resolved by a jury or a judge at trial. The hard facts are, however, that parties rarely have their litigation resolved at trial. Only 2% of State lawsuits filed are tried and less than 1% of Federal court cases are tried. The other 99% are resolved in one fashion or another prior to trial, and most of those at mediation.
In order to take full advantage of the process and advance your own position, you have to be prepared, knowledgeable and adaptable as you can be going into the mediation process. Knowing the facts and law, your position, and that of your opponent will give you a clear advantage in negotiating. It also sends a signal to the other side that you cannot be taken lightly and your concerns or grievances must be addressed. The preparation that includes knowing your opponent’s case allows you to anticipate your opponent’s strongest argument and be ready with countervailing arguments both legal and factual.
PREPARE YOUR MEDIATOR BEFORE MEDIATION.
Most mediators will ask that they be given an outline of the case by all parties prior to the mediation. You want to take advantage of this opportunity to clearly set forth why you are entitled to the relief you seek. This document should be straight forward and as factually based as possible. While the mediator is not the decision maker in the process, you want him/her to be knowledgeable of the facts so that he/she can be persuasive with the other side in presenting your arguments.
Prepare an opening statement. Again, you should reiterate the facts and law of your case, why it would be attractive to a jury, and likely have a positive result. Demonstrate the righteousness of your position. The opening statement is directed primarily towards the other side and it may be your only opportunity to speak directly to the decision makers on the other side. You want to explain both the strengths and weaknesses of yours and your opponents’ case and why in the end you believe you will prevail. Because this is a negotiation process avoid being overly confrontational or accusatory which can lead to polarization. If there is a high emotional aspect of the matter, it would be best presented early in the mediation in the hopes of getting that aspect of the matter vetted early. Each party’s emotional feelings are legitimate, but emotions frequently stand in the way of resolution.
LET THE PROCESS FLOW
Starting positions are meaningless. It is not where we start that matters, it is where we end that matters. Frequently, after the initial exchange of information in an open session, the parties will break into separate rooms for private consultations with the mediator. Do not be surprised if the mediator plays devil’s advocate against your case. Remember, the mediator is doing the same thing in the other room, as well. This is your opportunity to remind the mediator of what you told him in your pre-mediation letter, what came up in the opening statements that helped your case, as well as provide any additional information that you held back. Always advise your mediator at the end of the session what he can and cannot tell the other side.
During negotiations, be authentic. If you are quiet and unassuming, use that to project a steady approach to convey strength and conviction in your position. If you tend to be more flamboyant in nature, use your personality to convey certainty and conviction. If you tend to be more aggressive in your approach to matters, tone it down so as not to alienate or irritate the mediator. Listen carefully to your mediator. Remember that your mediator is hearing both sides of the issue and while the mediator may not be authorized by your opponent to reveal everything, how he/she presents information from the other side or characterizes a fact or position can give you insight into what is going on in the other room. Be prepared to respond to the weaknesses he points out in your case. The mediator who is relatively new to the matter is unlikely to have an insight that the other side is not already aware. If the mediator does bring to light a new weakness in your case and the matter does not resolve you can, through further discovery or the use of further research, strengthen that aspect of your case.
Mediation is the time where you and your opponent control the outcome of your dispute. The better prepared you are, the more knowledgeable you are of your position and that of your opponents, the greater the degree of control you will have during the process.
END OF MEMO
