Mediation offers an excellent opportunity for parties in a dispute to find a resolution without the costs and risks associated with going to trial. However settlements do not just happen and to give yourself the very best opportunity to reach settlement you need to plan ahead. Often mediations that “fail” do so because of a lack of planning and preparation. Here are just some of things you can be doing to improve your chances of success:
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Planning for successful mediation is not optional.
Know who is attending
- Speak to the Mediator
- Disclose your documents
- Prepare your negotiation strategy
Know who is attending
This sounds too obvious to say but I have seen damage done to mediations because of the attendance of one particular person the other side was not expecting. Had they known they would have objected. At best you create a delay as arguments rage about whether or not they should be there. If they stay one side can harbour a negative attitude and doubt settlement can be reached “because he/she is here”.
Speak to the Mediator
Don’t wait for the day of the mediation to speak to your Mediator. Tell your client to speak to them too as they may be anxious about the day even though they can not lose a mediation. Take the opportunity to ask what information the Mediator needs to ensure a prompt start and ask what his/her attitude is to opening statements, joint meetings and the like.
Disclose documents
If you have relevant documents that you wish to rely on don’t store them up for the day of the mediation to try and catch out your opponent. Mediation is not a trial. If you have sprung a suprise your opponent can leave the mediation and take their proper time to deal with it. Similarly if there are documents you need from your opponent ask them to send them well in advance.
Prepare your negotiation strategy
I think many litigators regard negotiation strategies as abstract concepts. They are not. They are too detailed a subject to discuss in depth here but I will come back to the subject at a later date. The very minimum requirement is to have made a full assessment of your best case and your worst case and the likelihood of each outcome. Having an up to date costs figure is essential for this.
Preparation for mediation is in my view essential if you are to make the most of the opportunity it presents.
As this is the first post of 2010 I wish you a Happy New Year.
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