Deciding to attend a mediation is an important step. Preparing for one increases the chances of a good settlement.
Once the mediator is jointly instructed and the rooms are booked for the day, these are some of the important things that you should consider when preparing for a mediation:
Use your mediator
Not speaking to your mediator in advance of a mediation is a lost opportunity. A pre-mediation chat with the mediator allows you to share your thoughts on the dispute. This seems obvious, but there are often collateral details that arise during these informal conversations that prove important in reaching a settlement.
The mediation day can go on for as long as the parties are willing to continue negotiating. But as the sun sets and people begin to tire, progress can slow. A quick pre-mediation call allows the mediator to suggest approaches to preparation that can reduce wasted time on the day.
Best of all, any pre-mediation discussions are included in the cost of the mediation and are also confidential!
What do you want, and why do you want it?
What people want is at the surface of any dispute. It is essential to also have a clear idea of why they want it: namely, their interests.
Identifying and making a list of what you want to achieve in a mediation and more importantly ‘why’ focuses the mind. It is possible for parties to become sidetracked by issues that seem important, perhaps emotionally, during a mediation and to loose sight of what is actually important to them.
Referring to a pre-prepared list of objectives and why they are important to you can bring negotiations back on track and open more creative approaches to settlement.
Know your costs
Many settlements live or die by the ability of the parties to agree on legal costs. Calculating costs after the substance of a dispute is resolved can waste valuable drafing time. Discovering that costs are unacceptable late in the day can lead to a reversal of hard-won concessions and put the process back.
It is, therefore, important to have access to the following information:
- Costs incurred up to and including the mediation.
- Costs likely to be incurred up to and including trial.
- If an appeal is likely, the costs of an appeal.
In addition to legal costs, it is also useful for parties to calculate non-legal costs:
- The costs in lost business time.
- The cost of any reputational damage.
- The costs in lost time with family and friends.
Being mindful of all of the costs of the dispute can also help you to risk assess and, consequently, make good decisions during negotiations.
How do you know if an offer is reasonable? Assessing the risk of continuing to litigate rather than settling a dispute by negotiation is the way to do it. This assessment allows you determine whether what is on offer during a mediation is reasonable when compared to what you could realistically hope to achieve by continuing to litigate. One of the formal products of this assessment is known as the ‘best alternative to negotiated agreement’ or BATNA. The BATNA is a function of the following considerations:
- Actual and estimated legal costs.
- The probability of winning at court.
- The value of the dispute.
An in-depth description of BATNA and the worst alternative to negotiated agreement (WATNA) is outside the scope of this article, but it is covered in a separate article.
Who will attend?
Do the people attending the mediation have the authority to settle the dispute? If not, they should have access, by telephone, to someone who can provide them with that authority.
Mediations can go on beyond normal business hours. It is, therefore, a good idea to ensure that if the person with ultimate authority is not in the room that they can be contacted after the end of the business day.
That authority can include the level of settlement that they can agree and their ability to bind the organisation they represent by signing a settlement agreement.
Who will speak?
The initial joint meeting is an invaluable part of the mediation day. Mediation is flexible, and a joint meeting is not mandatory, but it is a perfect opportunity for parties to re-establish face-to-face communication.
Lawyers often make the opening statements at a joint meeting. But there is much to be gained by the people involved in the dispute having their say. In cases where, for a long time, the only communication has been through legal representatives, allowing parties to speak can help them to see each other as people and promote a settlement.
Make peace not war
Now that you have decided who speaks, what will they say?
The temptation, particularly for lawyers, is to approach a mediation in a similar way to litigation. That can be counterproductive. While legal points have their place during a mediation, they should not be made to the exclusion of the main goal of the day: to reach a commercial and workable settlement that is agreed by both parties.
Each dispute is different, but a good opening speech will also make the other side feel that you are there to negotiate in good faith.
A mediator is not just for Christmas!
Of the 86% of mediated disputes that settle, 11% are resolved shortly after the day of the mediation.
In the unlikely event that your dispute does not settle on the day, a mediator should agree a convenient time to speak to both parties and see whether there is any scope for continuing negotiations.
To end with more good news: with Think Mediate, a reasonable amount of post-mediation contact is included in the price.
The degree to which you should prepare will vary from dispute to dispute, but the above tips should help you structure your efforts and increase the chances of a productive day.