Getting Clients Ready
Pre-Mediation Contact with Your Mediator – Unlike arbitration or judicially-supervised proceedings, communications directly with your mediator before mediation is acceptable. We encourage a short, private telephone conversation with the responsible attorney (the one who has authority over the file and who will be attending the mediation) before the mediation. Generally, this conversation will take about 10 - 20 minutes. It’s intended to give you and your mediator an opportunity to explore your client’s and your objectives in the upcoming mediation.
- Mediation Statements/Briefs – We encourage you to prepare a mediation statement. We also suggest that you share this submission with opposing counsel. If there are things you truly need to keep confidential, you can add a separate confidential section to the mediator’s copy. If you decide to submit a mediation statement, it would be useful if you addressed the following points:
1. Factual History: Where appropriate, consider including here some insight into the relationship between the parties and your view of how it may have unraveled into the dispute.
2. Procedural History: At the risk of stating the obvious, where are you in the case (presuming that suit has been filed)? If the history includes a previous mediation session that was unsuccessful, why in your view was it unsuccessful.
3. Key Factual/Legal Issues In Dispute: If there is controlling case law on the subject, which you believe will help your mediator guide you down the path toward resolution, this would be a good place to cite and discuss it.
4. Underlying Interests of Parties: This is important for you and your client to examine. This is the non-monetary part of the mediation – what are your client’s needs, wants, desires; what is this dispute really all about for her/him?
5. Factual and Legal Strengths of your client’s position: Be honest with yourself here, and be prepared to step away from your position during negotiations.
6. Factual and Legal Strengths of the other side’s position: It’s not that you need to accede to the other side’s position; this will help you prepare to at least acknowledge its existence and that it has its own strengths.
7. What will a fair outcome for Both Sides look like? Try to look through the eyes of the other side – how do you think he or she would answer the question?
8. What has kept the parties from settling this dispute? Though you may have to dig deeply here, try to identify and examine the “Barriers to Settlement”.
9. Is there something else you think the mediator should know to better understand the dispute and the parties to it? Most likely, this is the part that you may want kept confidential, at least going into the mediation.
- Preparing Your Client: At the risk of stating the obvious, this may be the most important part of your pre-mediation preparation. Familiarize your client with the process so that she/he has as few surprises about what will happen at the mediation. Explain that she/he may hear statements from the other parties that may be hurtful or offensive; encourage your client not to be hurt nor take offense as this is part of positioning and advocacy that is an integral part of the process. Help your client to anticipate the role of negotiation, the process of negotiation, and that the important thing is to stay at the table and keep things moving forward. Prepare your client for impasse – it is not that negotiations end there but that it is went we must get most creative. Ask her/him to examine what are her/his expectations from this process we call mediation?
- The Role of Cooperation and Realism: Remember that successful negotiations require the parties to work together, to cooperate in the quest for a negotiated end to their dispute. Also, be prepared to acknowledge and honestly evaluate the risks of going to trial; be realistic in your evaluations of a settlement proposal as it compares to the likely outcome and costs (economic and emotional) of leaving the last best offer on the table.
- Mediation is a Process: Lastly, remember that mediation is a process that has a beginning, a middle, and with your hard work a successful end. It must be allowed to run its course; any attempt to short circuit the process will likely derail it.
