(This is part one of a four-part article on preparing for mediation. It is adapted from a checklist for attorneys to use when preparing themselves and their clients to achieve better outcomes in the mediation of court-connected matters. As more and more people use mediation without attorneys, these tips can assist them to mediate more effectively on their own. These tips also may assist clients in preparing to mediate with their attorney, saving them the expense of paying their attorney to prepare with them.)
As with most things in life, preparation is the key to success. When preparing to mediate, there are many aspects of preparation. The key areas of preparation involve: developing an understanding of what you want versus what you need; preparing to explain your position in a way which invites the other side to listen and respond in kind; and preparing to negotiate for something less than what you want, something a friend of mine referred to as “total nuclear victory.”
Step 1: Find the value of a monetary dispute
One of the most important things disputants must do is determine their needs and interests, and place values on them so they can evaluate settlement offers received in mediation. A realistic idea of what the dispute is worth is essential to provide a starting point for effective settlement talks. I find that lawyers and parties who spend time valuing their dispute and use it to make an opening offer which invites the other side to negotiate, usually fare better in mediation, with an outcome closer to their target settlement number than those who don’t and start out with an unreasonably high demand, for plaintiffs, or low offer by defendants. Here are some steps to help value your dispute.
- Gather & review necessary information: any paperwork related to the dispute; photos or videos; “discovery documents” exchanged during court litigation (e.g., transcripts; answers to interrogatories; responses to requests to admit; documents produced; inspections/examinations; expert reports, etc.)
- In non-contract disputes like personal injury disputes, where damages are not easily quantified, you can determine value with:
- Experience (ask others who have had similar experiences, including attorneys)
- Jury verdict research (law libraries maintain copies of books which record jury verdicts organized by type of dispute and type of injuries suffered, with geographic information, etc.)
- Legal standards (research the law of your dispute or from other areas law, e.g., personal injury or worker compensation laws may provide some standards for valuing physical injuries and non-economic pain & suffering, humiliation, etc.)
- Use a “decision tree” to analyze the various decision nodes and identify choice points (explanations and tools for decision-tree analysis are available on the internet)
- Mock Trial (if the stakes are high enough, conduct a simulated trial having someone play the roles of the other disputants and a neutral third person you trust to be fair pretending to be the judge
- Prepare a written summary listing all of the strengths & weaknesses of your dispute.
- Share your summary with someone you trust to see if they agree or can think of other weaknesses (and be willing to share this list with the mediator at the appropriate time).
Step 2: Identify your mediator’s style
Styles vary among mediators. Call your mediator to ask:
- What is your style of mediation? Are you facilitative or evaluative? Do you meet in “caucus” only, joint session only or both? (A “caucus” is where the mediator meets with each disputant separately and carries information and offers back and forth between them.)
- What does the mediator expect from you? Do they want you to prepare and submit a mediation summary? Do they want you to make an opening statement?
- What “impasse-breaking techniques” might the mediator seek to employ? Will they ask you to make a last/best offer? If so, you will need to know how to calculate it based on information you receive during the mediation.
- Does the mediator intend to become evaluative if you and the other disputant are not able to come to an agreement using facilitative methods? (Some terms they may use are “Med-Arb”; or “mediator’s number”) Then decide whether you want them to put a value on the dispute or make a decision for you and let them know of any concerns or questions you might have now so you can avoid being faced with a decision during the mediation.
- What happens if there is still an impasse at the end of the mediation session and you or the other side won’t agree to let the mediator decide for you? Will the mediator follow up with both sides after some period of time either individually or in a new mediation session?
Knowing how your mediator is likely to conduct the mediation helps you determine how and when to reveal information, make offers and counter-offers. For instance, if the mediator is likely to become an arbitrator, as in “Med-Arb” (mediation followed by arbitration if no agreement is reached in mediation), or giving a mediator’s number, you may not want to reveal the weaknesses of your dispute during the mediation phase.
In part two, we will look at managing your expectations and developing an understanding of the mediation process.