Preparing For a Mediation: A 10 Step Guide

preparing for mediation

Preparing for the mediation process doesn’t need to seem so daunting. With these helpful steps, you can be well on your way to a successful mediation session. Dispute Resolution (ADR) is a system of processes designed to assist parties in resolving their disputes economically and more quickly than the traditional court system. Its value lies in reducing the civil justice system’s time, cost, and uncertainty. The key to achieving successful results in ADR is preparation before the mediation. The following represents the basic steps for an attorney or other parties to prepare for a mediation hearing.

Step 1: Choose the Right ADR Process

The various ADR processes have good and bad points; some are better suited to certain situations than others. Here, in a nutshell, are the most common:

  • MEDIATION. A private, voluntary process in which an impartial person facilitates communication between the parties to promote a mutually agreeable settlement.
  • JUDICIAL SETTLEMENT CONFERENCE. A neutral third party, usually a retired judge, listens to an abbreviated presentation of the case and renders an advisory opinion on factual or legal issues and damages.
  • MED/ARB. Parties agree to mediate with a stipulation that any issues not settled will be resolved by binding arbitration.
  • ARBITRATION. In an adversarial process, the disputants select a neutral third person to listen to the evidence and render an award. It can be binding or non-binding and may involve “high-low” limits.

Step 2: Understand the Rules and Guidelines of the Mediation Process

At this stage, you want to ensure that everyone understands the rules of engagement. By taking the lead in this process, you will avoid problems later.

  • CONFIRM AGREEMENT TO THE HEARING AND COSTS INVOLVED. The written agreement to mediate sets forth the procedures for the hearing and who is responsible for the costs. The agreement can be designed to fit your needs. However, since mediation is non-binding and can be terminated at any time, the agreement is normally flexible so that the parties can control their own destiny. The main components of the agreement include confidentiality, cost, and mediator selection.
  • CONFIDENTIALITY. Ensure the written agreement is executed by all parties, confirming the confidentiality of all information learned during the mediation process and that the information cannot be used later against someone in court. (The rules of evidence in some states may not provide adequate protection). During the hearing, the mediator will get your permission before disclosing information you revealed in a private session to the other side.
  • FORMALITIES AND INFORMALITIES. Usually, a hearing is informal, although each mediator has his or her style. Ask the mediator about his/her style or approach before the hearing or at the beginning of the joint session. Mediators vary in their insistence on following formal evidence rules. Determine whether or not the mediator prefers how you should present your side of the case. Be sure that everyone with the authority to settle is present.

Step 3: Create a Case Road Map

As with a full-blown court case, you need to plan your preparation. Do not let the informality of the procedure lull you into something less.

  • IDENTIFY THE ISSUES IN DISPUTE. Make a written list of what you consider to be the critical issues of the controversy. This will allow you to focus the negotiation on those issues and assist in objectively evaluating the case.
  • DO A “CRITICAL INFORMATION ANALYSIS”. Ensure you have all the information you need regarding liability and damages before the hearing. If legal research is involved, bring copies of appropriate research to the hearing to share with the mediator.
  • ANALYZE HOW YOU WOULD TRY THE CASE. Evaluate the strengths and weaknesses of the case from an objective perspective. What verdict would a jury likely return in the case, or what conclusions would a judge make? Consider your realistic expectations based on criteria the evidence can support. This allows for a balanced approach to the case rather than a subjective evaluation.
  • PLAN YOUR PRESENTATION. Consider what information about your interests, the facts of the case you want to disclose to the mediator, and what information you want to disclose to the opposing side. Usually, full disclosure to the mediator helps facilitate a successful settlement.
  • PREPARE A SIMPLE CASE SUMMARY. Also known as a “position” statement or brief, this is your opportunity to outline the facts of the case, issues in dispute, damages, and other factors. Consider the value in providing a confidential statement to the mediator, which includes your thoughts on what criteria you will use to determine when an agreement proposed is fair, how you think the other party realistically views their chances of success, and what you think the other party views as a fair outcome for both sides.

Step 4: Develop a Negotiation Strategy

Although the mediator will meet with the other side to communicate offers and counteroffers, you should clearly know how you want the negotiation process to proceed. You should also consider making your proposals palatable to the other side.

  • IDENTIFY THE CURRENT NEGOTIATING POSITION OF THE PARTIES. Do a mental review of the negotiation activities to date so you know where to begin or where the opposing party might perceive you will begin. This is an excellent opportunity to remind yourself of your common goals.
  • DETERMINE “WANTS” AND “NEEDS”. Often referred to as “interests,” these are the silent movers that motivate people to change their “positions” in a negotiation. You decided upon your position, while your interest caused you to decide.
  • CONSIDER “WHAT’S AT STAKE. “ Objectively evaluate your case through information obtained through litigation or independent, verifiable criteria such as jury verdicts.
  • CREATE FAVORABLE PERCEPTIONS. Negotiation is a series of communications in which the parties attempt to alter each other’s perceptions. To be successful, you must be able to manage the information received by the other side. Do this by listening actively, respecting the other side’s claim, posing arguments, making proposals, and offering alternatives.
  • DEVELOP OPTIONS FOR MUTUAL GAIN. Consider whether the settlement options available are preferable to proceeding to trial. This requires a cost analysis of settling at mediation versus going to trial and close reflection on what options are available to the other side.

Step 5: Obtain Authority to Settle

Be prepared to negotiate. That means having the financial ability to settle the dispute with adequate reserves in place. Meet in advance with whoever might need to be consulted about the prospect of an immediate settlement (attorney, wife, husband, business associate, or another necessary person).

Step 6: Determine Which People Will Attend The Hearing and What Role Each Will Play 

  • PLAINTIFF(S)
  • ATTORNEY(S)
  • DEFENDANTS
  • INSURANCE REPRESENTATIVES

Step 7: Pre-Mediation Preparation

Basic preparation steps include the following:

  • Consider what you will disclose both in pre-mediation and during the mediation.
  • Use the mediator. In private, preliminary telephone conversations before the hearing, talk with the mediator about your presentation and approach to the case and what information you and the other side need to know to evaluate settlement terms.
  • Anticipate what story you will tell during the opening mediation session and rehearse it, and
  • Organize Documents. Have copies of documents, photos, or other writings available before the hearing begins.

Step 8: Opening Statements

Three simple rules for your opening statement:

  • BE SIMPLE, CONCISE, AND CLEAR. Tell a short story in plain words.
  • DON’T WAIVE YOUR RIGHT TO AN OPENING STATEMENT
  • TALK ABOUT YOUR SIDE, NOT THEIRS

Step 9: Make it Easy to Reach Agreement

Throughout the process, and even before it begins, you should think about what it takes to make it easy to reach an agreement. Steps include:

  • Cultivating a sense of mental detachment. Take yourself out of the negotiation playing field and insert the dispute in your place. This allows you to talk about the issues in dispute rather than getting bogged down in personality games.
  • Meeting the other side’s needs. You can better understand your opponent’s needs by listening actively, acknowledging, and paraphrasing their arguments. Express your views without provocation. This is an effective tool to “disarm” your opponent while understanding their point of view.
  • Problem Solving. This is the time to recast what your opponent says in a form that directs attention back to satisfying both sides’ interests. Ask “what” and “how” questions for a solution. Sometimes, asking “why” will cause your opponent to be defensive.
  • Considering the consequences. Ask reality-testing questions such that your opposition will understand what will happen if an agreement is not reached.
  • Bridging the gap. Help your opponent save face by reaching an agreement. Try to satisfy unmet needs and involve your opponent in the process. Don’t rush into the agreement; it will fall into place naturally.

Step 10: Reaching Agreement

After all of the hard work that you have done to reach an agreement, take a few final steps to make sure that there are no disappointments:

  • Put the agreement in writing. Don’t wait — do it immediately upon reaching an agreement.
  • Make sure the decision-makers can perform the agreement and
  • Congratulate each other. You deserve it.

To learn more about preparing for mediation, negotiation, and dispute resolution techniques, contact ADR Times!

Jeffrey Krivis
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