THINGS YOU SHOULD KNOW TO PREPARE FOR A SUCCESSFUL MEDIATION
The aim of this newsletter is to share with you some of the most important mediation preparation skills you need to know about in order to allow you and your clients to get the most out of a mediation session.
1. The Law
If you are an attorney, you know how to prepare for trial, but do not necessarily know how to plan for a mediation. The skills needed to get ready for trial are much different than the skills required for mediation. When you are preparing for trial, it is important to be able to competently present your client’s position to the Court and to argue that position to the judge or jury who will make the decision.
During a mediation, although the participants need to understand what the law is relevant to their dispute, the knowledge of the law is not the key factor. People mediate to find a solution to their conflicts and any options brought by the parties should be listen to and explored. As a result, it is extremely common, not to say the norm, that the settlement that is reached has little to do with the application of the law.
Therefore, when attending a mediation session, whether you are a lawyer or not, be ready to stop arguing your case based on the law that applies. The reason for this is quite simple: the mediator is not a judge and has no decision making power (Evidence Code §1115). As a consequence, a discussion primarily based on a legal argumentation will be of little help to the mediator and/or to the parties involved.
2. Discuss Possible Resolutions With Your Client You are smart. You have probably handled situations like this one before. Apply your knowledge and experience to the facts of this case and come up with some possible solutions that you can review with your client prior to the mediation.
By discussing possible alternatives with your client prior to the mediation session, you convey to your client that the mediation will be a time to discuss not to fight. This will assist them in beginning to think along the lines of what is important to them and what issues are they willing to give up on or not. This line of thinking many times leads to creative options that lead to a resolution.
3. Share Information With The Mediator
The mediator is neutral. The mediator’s job is to clarify the issues, make sure each party understands the other parties position and to be of assistance in the discussion to resolve the dispute.
The mediator can ONLY work with the information given to him/her by the parties. As a result, do not omit to provide factual information to the mediator such as but not limited to: the nature of the dispute, the specific issues to be resolved, the settlement history if applicable, the procedural status (discovery), pre-trial motions still pending before the trial judge, etc).
In a nutshell, mediators need quality input to formulate an effective strategy for assisting the parties to reach a compromise. By sharing all the information you have, the mediator can focus on the specific items pre- determined by the parties rather than having to ferret out what the problems of the case are that need to be resolved.
4.Make Sure You Have The Right Parties At The Mediation
Do you have ALL the “decision makers” at the mediation. This seems pretty obvious, but many parties fail to consider this important fact. It usually comes up after hours of mediation have occurred and a potential consensus is reached, only to find out that the all the decision makers are not there and the one missing won’t agree.
If some of the decision makers will not be present at the mediation, make sure they gave authority to another person to accept a mediated resolution of the case on their behalf or that they are available by telephone to discuss possible settlements and by email to sign and return a mediated settlement agreement.
Properly preparing for a mediation can result in a much more efficient mediation session and a better outcome for your client.