By: Sylvia Mayer, Mayer on Mediation (http://smayerlaw.com/category/mayer-on-mediation)
In the world of civil litigation, mediation falls in the same category as death and taxes – it is a certainty. While every case is different, below are some “one size fits all” practical tips for preparing for mediation based on over 20 years of experience.
Be Prepared. You wouldn’t walk in to a courtroom to try a case without any preparation, so don’t walk in to a mediation without any preparation. At a minimum, educate your client. Clients need to understand what mediation is, why they are attending the mediation, and what they can expect in a mediation. As part of this, clients should also understand that mediation is about compromise, whereas trial is about winning. While the mediator may address this important distinction, it is most effective if clients hear it from their counsel pre-mediation and begin to consider what a compromise might entail.
Use Your Mediator. Mediators are there to serve. They want to help the parties reach the best possible settlement for their case. Use this to your advantage. A good mediator wants you to. Is there a concern for the safety of your client? Tell your mediator, so she can take appropriate precautions. Have a difficult client or a client with unrealistic expectations? Tell the mediator, so he can help you with your client. Have compelling facts, but bad law? Or bad facts, but compelling law? Tell the mediator, so she can help you in the mediation. While the mediator is impartial, it is his or her role to facilitate a settlement. Mediators are there to serve, so use your mediator.
Know the Business Implications. For business disputes, preparation includes exploring the business concerns underlying the dispute and any ramifications of a settlement or judgment (whether favorable or adverse). Is there a precedent issue? Are there public relations concerns? Is there an ongoing relationship between the parties (or would one party like there to be) to consider? Are there competition issues or quality control issues beyond the litigation, but which impact a party’s ability to settle? Understanding the business implications enables parties to explore more creative settlement options, as well as to identify those options that would be wholly unacceptable.
Mediation is designed to be valuable for all parties to the dispute. These tips may help parties maximize the value of their mediation experience. This is the first part in a three part series. Check subsequent posts for additional tips.