Regardless if the reader is a practicing mediator, an attorney, a user or an academic, the preparation stage of mediation should be of interest and viewed as being vital for a successful mediation.
There’s simply too much to retrieve if a mediation is not properly prepared and it’s up to the mediator to make sure beforehand that all the participants are identified, involved in, discussed with and aware of the general advantages of the mediation and of the specific design of a process.
This is to remind you that many (if not most) difficulties that can occur during mediation can be overcome by thorough preparation with all the parties, their attorneys and sometimes other stakeholders of the case.
The best mediation agreements are designed by the parties in order to jointly meet their needs and interests and almost every time the lawyers and their clients are the source of that particular creative mindset, quintessential to resolve a dispute. Through his or her “way of being”, it is up to the mediator to stimulate and inspire that creativity even from the pre-mediation stage.
Many mediators are sharing template preparation documents with their clients, sometimes on their websites, in order to effectively prepare for a mediation session. These documents differ from mediator to mediator and from case to case from simple bullet lists to fully effective complex mapping documents that require a lot of time to be understood and worked with.
As recent studies are showing that cases are much more likely to settle in mediation if a client is fully prepared, the use of through preparation stages is more and more professionalized at the high end of the practice and this should encourage and progress thinking among all mediators, attorneys and educators, regardless their level of experience.
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This is an excellent point. Lack of adequate preparation can hamper successful results in high-volume mediation practices such as those with many court-appointed cases, for example.
You are so right: preparation is the key to successfully resolving disputes through mediation. My Top Ten List of things to do prior to the mediation are:
1. Exchange with your opponent salient information about the case well in advance of the mediation.
2. Set a target settlement range prior to mediation.
3. Analyze in advance your risk versus concession points.
4. Prepare an effective mediation brief.
5. Prepare your client for the mediation. You should have a pre-mediation meeting with your clients to discuss your settlement strategy, the risks of trial, the costs of litigation, including attorneys fees and expert fees, the implications of a statutory offer to compromise and the possibility of paying the other side’s fees and costs, evidentiary problems and motions in limine that could limit your ability to put on your case, the possibility of an appeal and the length of time and the costs associated with an appeal, collectability issues, and any other fact that would help your client make an informed decision with regard to the settlement value of the case.
6. Ensure the presence of the decision makers. Nothing sinks a mediation faster than not having the captains on board and engaged in the process.
7. Show respect for other parties.
8. Be willing to listen.
9. Remain flexible.
10.Don’t hold on to unreasonable expectations.