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” practice tips for preparing for mediation based on over 20 years of experience.
Be Candid. The mediator is a third party neutral responsible for the process, but the parties are responsible for the outcome. Be candid with your mediator about prior settlement talks, actual or perceived barriers to resolution, business concerns and considerations, and whether there is available insurance coverage. Uncomfortable with being candid in writing? Call the mediator to discuss. The better informed the mediator is, the better job the mediator can do. Failure to disclose information to the mediator may impede the mediator’s effectiveness and result in wasted time.
Use the Mediation. There are hidden benefits to participating in mediation even if the case does not settle. Mediation affords each party an opportunity to test their theory of the case and get a free look at the other side’s theory of the case. It also allows the parties to preview issues that may arise at trial. In addition, if the party attending will also be a witness, then the joint session may be an opportunity to gauge the credibility and caliber of the witness. So use the mediation. If your case doesn’t settle, you may still benefit from the process.
Agree to Disagree. At trial, each party is trying to convince the judge or jury that their version of the facts is the truth and that they should win. At mediation, each party should share their version of the facts and listen to the other side’s version. While trial is about determining what happened and who wins or loses, mediation is about agreeing to disagree on the facts and developing a mutually beneficial compromise. The mediator’s job is to actively listen to each side and then bridge the differences to reach settlement.
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 second part in a three part series. Check other posts for additional tips.