Preparing for Your Mediation

There is no single key to achieving success at a mediation. But in my experience, lack of preparation by the parties can be an obstacle to settlement. Preparing for a mediation deserves much more than sending a written submission to the mediator – it should be treated as the equal of any other significant step in the case. You wouldn’t dream of taking the deposition of an expert or arguing a dispositive motion without serious preparation, and if you want to enhance your chances of settling at the mediation, you should be do the same.

Here are my suggestions:

Prepare Your Client

•    If this is your client’s first mediation, be sure to explain the process: what to expect from opening session, caucuses, down time.  Focus the client on why and how mediation is different from trial in a courtroom, and discuss the rules of confidentiality.

•    Have a frank discussion about the likely cost of litigation through trial, including expert fees. If recovery of attorney fees by either side is a possibility, explain the risks.

•    Don’t let your client get stuck in an unrealistic mode of thinking this case will be the “home run”.  Your client won’t want to negotiate if he or she gets anchored to a specific result, outcome or dollar amount – help the client be flexible and open minded.

•    Encourage your client to interact with me on a personal level.  I’ll be prepared to earn your client’s trust but I need you to open the door.  I am a resource to help with negotiations, not an adversary to be persuaded.

Be Ready to Negotiate

•     Take the time to make an unbiased evaluation of the case: examine the issues on both sides; consider the range of possible outcomes; analyze all costs of litigation, the time line for completion of the case, and likelihood of appeal.

•    Develop a negotiating plan: where to start the negotiation, how best to move from point to point during the negotiation and at what point to walk away. Ask me about the “settlement box” in negotiations and how it might affect your negotiation plan.

•    Avoid spending time negotiating in a place everyone knows is beyond the likely range of settlement discussions. It tends to discourage the other side from taking you seriously, and might bring about impasse when there is still plenty of negotiating room on both sides.

•    Be patient.  I recommend against a “cut to the chase” negotiation strategy that immediately lays down a “final” offer.  In my 20+ years of mediating commercial disputes, I’ve never seen this strategy result in settlement because the other side is unlikely to believe your offer is truly final if it comes too early in the mediation. Doing so risks creating an impasse before the parties have had time to reach the zone of potential settlement, or requiring you to capitulate and continue negotiating beyond your “final” position.

Be a Good Mediation Advocate

•   Provide submissions to me that are thoughtful, not a simple regurgitation of arguments in pleadings. Your submissions should educate me about the case in a way that helps me understand what’s keeping the case from being settled.

•   Maintain an attitude that will facilitate discussion of issues and encourage negotiations.  Don’t criticize the other party or lawyer, complain about their “tactics” or question whether they’re negotiating in “good faith”.

•    Acknowledge, and help your client manage, your client’s emotions.  Don’t take on your client’s animosity toward the adversary or adverse counsel.  Keep your distance from your client’s anger – it’s best for your client and will be beneficial during the mediation.

•    Don’t use surprise as a negotiation tactic. It may embarrass opposing counsel and cause the lawyer and client to react by engaging in similar tactics, which can lead to a breakdown in negotiations.

•    Be prepared to discuss all settlement terms.  If there are key provisions your client will require in a settlement agreement, let me know early on.  If your client needs formal approval of someone else, have that person fully and readily accessible throughout the day.