How to Prepare - Common Mediation

As a party in mediation, remember that a primary purpose of mediation is to empower you to solve your problem. You will have every opportunity to express your issues and concerns and to fully participate in the discussion. You will be asked to listen to what others are saying and try to understand their views and concerns - especially those you disagree with. The more you understand them, the better you will be at negotiating a resolution that is in your best interests. You will be expected to provide whatever information is needed to deal with the problem.

Good preparation will enable you to participate effectively in mediation. If you have a lawyer, he or she will be a valuable resource in this preparation.

Review your goals and interests - and those of other parties. Look for win-win potential.

Clearly identify and summarize all of the main issues in the dispute.

Determine what information you will need to deal with the issues in dispute. Collect and organize the information available to you and advise other parties what you need from them. If possible, exchange all required information with the other party and provide a copy to the mediator at the mediation.

Put yourself in the shoes of the other side, and imagine what might be important to them. Prepare to listen carefully so as to gain understanding of their views.

Identify the likely results, costs and risks (money, time, goodwill, reputation, morale, productivity and other impacts) of going to court or arbitration if an agreement cannot be reached. Identify your best alternatives to a negotiated agreement - that is what is your best alternative away from the mediation table. Your lawyer will be able to give you an estimate of the monetary costs of going to litigation but, of course, there are many non-monetary costs as well.

List any specific questions or concerns that you may wish to raise with the mediator before the mediation.

Approach the mediation process optimistically and with a positive attitude - this is the best way to achieve a positive result!

Work closely with your lawyer or advisor and prepare to take an active role in the mediation and to directly express your thoughts and feelings about the issues in dispute.

Below is a more detailed list:

Using mediation requires several generic steps, and includes some steps that apply to litigation even where no mediation occurs.

1. Know your case.
In the context of preparing for a mediation session, "know your case" means knowing and preparing the following elements.

a. Know which facts are disputed and which are undisputed.

b. Know which facts are critical, which are important and which are merely background. (Do not dismiss background facts.)

c. Lay out the elements of your cause(s) of action and the facts you have. This will form the background of your preliminary statement.

d. Know your damages or other desired relief (if seeking relief). (Regardless of whether you are moving or defending the case, know what result you want). This will help you focus on what you hope to achieve in mediation.

e. Know your counter-claims and defenses (if you are actively resisting sought relief) and know your liability issues, disputed and undisputed. This is the first half of knowing the points you have to use in negotiation and the mediation.

f. Know comparable jury verdicts (if any). This can be very important and helps you in evaluating your goals.

2. Know your alternatives to settlement.

a. Know your risk. Ask yourself: What is your range of results if you do not settle?

b. Know how long and how expensive it will be to go to trial and what outcome is possible at trial. Ask yourself: What will it cost you to go to trial?

c. Know what results are likely from a trial. Ask yourself not only what the range is, but: What is likely to happen if you go to trial?

d. Be aware of your client's other options (such as walking away) and other tools (such as binding arbitration).

3. Validate your opponent's file.

Review and make certain that the other side has all of the materials necessary to fully negotiate. 21% of all failed mediations fail because one party did not prepare properly -- often simply because a necessary medical report, bill, or similar item was not provided to them (or not had by the party who should provide it).

Your goal is to make certain you have everything you need by making certain the other side has been sent everything they should have and that you have asked for and obtained the items you feel you should have from them. You should also read everything again at this point -- before you send it.

4. Review the Mediation Checklist, Provided Below.

Once you have prepared, using the four steps provided above, you can set up the mediation by using the checklist below. It covers the basic steps and considerations necessary to set up a successful mediation.

MEDIATION CHECKLIST

1. Select Mediator

2. Confidential Pre-Mediation Papers for Mediator:
a. concise statement of issues and positions.
b. identify strengths and weaknesses.
c. provide timeline for case and for negotiations.
d. detail who will be present and their relationship to the case.

3. Order Referring to Mediation:
a. double check for confidentiality provisions.
b. allocate costs.
c. identify time, place and persons attending.
d. make certain that all persons with authority will attend.

4. Opening Statements
a. introduce yourself -- humanize yourself.
b. acknowledge a belief in the process and your good faith.
c. express sympathy.
c. outline your position, the basis for your position, and areas of good faith disagreement.

5. Initial Caucus
a. identify the strengths and weaknesses of case -- discuss.
b. evaluate the expected outcome of your case.
c. discuss "the first credible offer" and when to make it.
d. discuss unanticipated elements or overlooked issues.
e. discuss initial expectations.