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 Prepared to Compromise. Mediation allows parties to control the outcome, whereas trial is a gamble resulting in a winner and a loser. In order for mediation to be successful, however, all parties must be prepared to compromise. In a settlement, each party will get less than they would get if they won at trial, but more than they would get if they lost at trial. Settlement falls somewhere in between each side’s “win.” Thus, when preparing for mediation, parties should be preparing to compromise.
Consider the Nonmonetary. Before the mediation begins, parties should consider what they have to offer (or what they need) that is not monetary. For example, in many cases, a powerful nonmonetary contribution can be a sincere apology. In an employment dispute, common forms of nonmonetary consideration are letters of recommendation or outplacement services. In a business dispute, nonmonetary consideration may come in the form of referrals or introductions or an agreement to continue doing business together. In a discrimination or harassment dispute, nonmonetary consideration may include training or a public apology. Be creative. And be open. Sometimes it is the nonmonetary aspects that bridge the parties to settlement.
Know Thy Range. Most clients can easily explain what a win or a loss looks like to them, but they may struggle to identify a realistic settlement range. In order to ascertain a settlement range, parties should consider the strengths and weaknesses of their case, the cost of continuing litigation versus settling, the time value of money, the enforceability of any judgment, the likelihood of success at trial (based on the merits and on the uncertainty of trial), and the intangible drain of litigation (including lost productivity and impact on reputation). While this assessment should be undertaken pre-mediation, parties should remain flexible and continually reassess throughout the mediation.
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 third part in a three part series. Check prior posts for additional tips.