(This is part two of a four-part guide on preparing for mediation. It began as a checklist for attorneys to use when preparing themselves and their clients to achieve better outcomes in the mediation of a court-connected matter. As more and more people use mediation without attorneys, this guide can assist participants to mediate more effectively. The guide can also be used by clients in preparing to mediate with an attorney, saving them the expense of paying their attorney to follow the suggested steps to prepare for mediation.)
In part one, we looked at ways to establish a value for a monetary dispute and identifying your mediator’s style. In this installment, we look at managing your expectations and an overview of the mediation process.)
Manage Your Expectations
You will want to manage your expectations. As noted earlier, a total nuclear victory is not a likely outcome in mediation where compromise is the norm. Review strengths and weaknesses of the dispute from all sides and determine your needs, wants, and identify any “giveaways.” (Giveaways are things you may be able to offer up to the other side which cost you nothing, but may have some value to the other side, like an agreement to keep the settlement confidential.)
Identify the other side’s view of their strengths & weaknesses, their negotiation style, any of their “hot buttons” which could derail settlement negotiations (like a personal dislike for someone on your team), and their known needs and interests. Seek input from others to identify your best case (BATNA) and worst case (WATNA) outcomes if you are not able to settle at mediation. Use the decision tree analysis mentioned earlier to quantify the value of likely outcomes. If you haven’t already done so, consider using third parties at this stage to determine value using dispute evaluation, mock arbitration or trial.
Understand the Process
Understanding the mediation process will help you prepare by eliminating some of the unknowns. Here is a general overview of the rules and the process.
- Confidentiality. Mediation communications are supposed to be confidential, meaning they cannot be used later in court should you not settle. However, even if they can’t be used in court, once you make an offer you may be setting a floor/ceiling for future negotiations.
- The Mechanics of the Mediation Process.
- The actual mediation process typically begins with introductions in a “joint session” (a meeting with all participants in the same room), although some mediators will meet privately with each side before starting in a joint session.
- The mediator then describes their particular mediation process and discusses any ground rules they have, such as not interrupting another speaker, speaking respectfully without name calling, etc.
- A hallmark of mediation is the opportunity for parties to speak and be heard by the mediator and the other participants directly. You will likely be asked to do so by making an “opening statement.” The opening statement is an opportunity to tell everyone what the dispute is about from your perspective. (Tips for developing an opening statement will be discussed in part four of this series.)
- Opening statements usually begin with the person whose complaint initiated the dispute resolution process; the “plaintiff” in a lawsuit, a spouse asking for a divorce, etc. Each party is given the floor to state, without interruption, what the dispute is about from their perspective. When you are finished making your opening statement, the mediator may ask what outcome you hope to achieve at mediation.
- TIP: Practicing your opening statement in front of a mirror or a friend or colleague can take some of the nervousness out of the situation. Writing out the points you want to cover is also a good idea, but don’t read a prepared statement as it if very ineffective and conveys a lack of conviction.
- As each person finishes making their opening statement, a good mediator will summarize what the speaker said and may ask some clarifying questions.
- At this point, the process varies from mediator to mediator. Some will continue in joint session until a settlement is reached and right up to the drafting and signing of a settlement agreement or memorandum of understanding. Others will continue in joint session until they feel the need to meet privately with the participants. Still others will automatically divide the parties into private meetings as soon as the opening statements are concluded. It just depends on the mediator’s style and what is going on in the mediation at the conclusion of the parties’ opening statements.
- TIP: BE AWARE! Private meetings can mean long periods of time (an hour or more is not uncommon) with you sitting all alone in a room while the mediator meets with the other participants. To prepare for these periods of solitude, bring food, reading materials, games, crosswords, a computer, etc. to help pass the time. Food will help you stay sharp in case the mediator does not call for a lunch break. (Tips on other things to bring with you to the mediation will be provided in part four of this series.)
- Roles of Participants. Understanding the roles of the mediator and the parties may also help eliminate some apprehension.
- The mediator’s role is to moderate the negotiations, not adjudicate or recommend an outcome.
- Although the mediator’s role is to be neutral, they can provide an outsider’s view to help assess strengths and weaknesses, especially by their questions, even if they don’t render a verdict or make an award.
- During the negotiation process, parties are expected to engage in some give and take and to be considerate and respectful, remembering you are trying to persuade the other side to do something you want them to do and they may not want to do it. The old adage about flies and honey is appropriate to this give and take process.
- Remember, you want to make decisions based on your BATNA and WATNA, not just your emotions. The goal is not to settle at all costs, but to determine whether settlement is possible on reasonable terms and, if not, discover the other side’s current bottom line and how you might get them to move from it.
- Your attorney’s role is to be an advisor and advocate, not adversarial or gladiatorial. Like you, they will attract more flies with honey than vinegar.
In the next installment, we will focus on developing a negotiation strategy.