Preparing for Mediation

Whether going into a family mediation session or a business mediation session, the key to a successful experience is prior planning.

Preparing for Mediation
  1. Take a look at the mediation agreement before the first session so you know what to expect. You will be asked to sign it before the session really gets going. Feel free to ask any questions of the mediator or your counsel.
  2. Think about what you want to accomplish through mediation and how you want to present it so you are at your most persuasive both to the mediator and, especially, the other side. Your goals can be both monetary and non-monetary.  In other words, consider under which, if any, circumstances you are prepared to settle, or whether you are in mediation for other reasons.
  3. Think about whether you have all the information you need to make a decision. If you or your counterparty are considering whether it makes sense to complete limited discovery beforehand, speak with the mediator; he may be able to help both sides come to an agreement that contains the scope, and therefore the cost and time.
  4. Start thinking about what negotiation theorists call your “reserve point,” the point past which further compromise is impossible. Do not get locked in, though, since creative solutions may come up during the mediation that would address your needs even at a different dollar amount.
  5. Think about what will happen if you are not able to agree during the mediation. Negotiation theorists talk about “BATNA” (Best Alternative to Negotiated Agreement), “WATNA” (Worst Alternative to Negotiated Agreement) or “MLATNA” (Most Likely Alternative to Negotiated Agreement). Will you leave the decision to a judge or special master? How will people who are not in the room, like family members or employees, be affected? Should any of them have a say in the resolution? How do the other parties’ BATNA, WATNA or MLATNA differ from yours?
  6. Be prepared to discuss with the mediator the history of attempts to resolve the dispute.
  7. Think about which of your buttons the other party pushes. When you get defensive, what are you trying to defend? Similarly, think about which of the other party’s buttons you seem to push. Interpersonal friction can have as much an application in the corporate context as with individual parties.
  8. Think about how the other party will react to your proposals. Will there be instant suspicion or rejection? Is there a history to which you might alert the mediator?
  9. Think about whether you want to win, or whether you want the other party to lose. If the latter, think about why that might be.
  10. Think about whether you have a personal or business relationship with the other party that would be good to preserve. Will you need to cooperate with the other party about anything in the future?
  11. Think about how your business will operate, or how your life will look, after the conflict is resolved. What steps are you willing to take to make that happen?
  12. Think about who will attend the mediation. If you work for an organization that is involved with the dispute, think about whether you or someone reachable during the mediation has the internal authority to come to an agreement. Discuss it ahead of time with the mediator. If both parties are US-based, it is generally expected that someone with decision-making authority will at least be available.
  13. If counsel is involved, we will talk with them about which papers to submit to the mediator ahead of time, which may include a confidential mediation brief, copies of pleadings and copies of documents that are at the heart of the dispute.
  14. The mediator may suggest a brief talk with each of the parties or their counsel beforehand. This ex parte conversation gives each side the opportunity to tell the mediator anything they think he should know that they may not want to share with the other side. Venting is OK. Consider what you want the mediator to be thinking about in advance.
  15. You or your counsel should talk with the mediator ahead of time if you are bringing third party advisors or family members to the mediation session. Among other things, they may be asked to sign a mediation observer confidentiality agreement.
  16. Get a good night’s sleep and come in with a plan and an open mind.