On 24th September Kluwer and the International Academy of Mediators (IAM) hosted their inaugural mediation webinar – ‘7 Ways to Make Your Next Mediation Successful’. Attendees joined from all over the world. Don’t worry if you couldn’t attend on the day – we’ve posted the webinar on YouTube, and it can be viewed here.

 

1. PRE-QUALIFY CASE

a. Internal (client) v. External (counsel)

i. What does tomorrow look like if dispute resolved?

ii. Discuss client’s fantasies about case/outcome

iii. Justice?

iv. Rewrite the past?

v. Mourning process

b. Selection of mediator

c. Have mediator talk to other side

d. Identify who is attending from each side

e. What materials might be useful to give to the other side in advance; to the mediator privately

f. Avoid ambushing the other side with new reports from experts

g. Research the people and personalities in advance

 

2. IMPEDIMENTS/BARRIERS

a. Structural

b. Procedural

c. Legal (motions, etc)

d. Notify mediator of anticipated barriers

e. Perceived v. real barriers

 

3. INFORMATION OVERLOAD

a. Create punch list

b. Written submissions

c. Dumping depos, etc on mediator the night before

d. What to provide the other side by way of submission

e. Separate “confidential” submission to mediator

 

4. EARLY EXCHANGE OF WRITTEN SETTLEMENT AGREEMENT

 

5. CHANGES IN DYNAMICS/ANALYSIS BEFORE MEDIATION

a. Don’t blindside the other side

b. Discuss with counsel and/or mediator before session

c. Problems with right people attending in person; by phone

d. Options: cancel, reset, notify

 

6. NEGOTIATION PLANNING

a. Don’t be a prisoner….

b. Preparing client for role of mediator, advocate, etc

c. Timing and pacing discussion

d. Your presentation: powerpoint; length; tone; temperament

e. Dynamics

 

7. SOCIAL MEDIA

 

8. MANAGING THE SESSION FROM COUNSEL’S PERSPECTIVE

a. Calculating options; batna

b. Inflection points: case turns on 1, 2 or 3 key issues; the rest are irrelevant

c. No argument—use conversational tone

d. Strategize with mediator to turn difficult participants into allies of process

e. Be transparent when managing expectations

 

9. MANAGING SESSION FROM MEDIATOR’S PERSPECTIVE

a. Let parties know whenever they are endangering process by tactics they display

b. Explain risks of bad behavior in order to help convince other stakeholders of positions

c. Let them know when we are playing devil’s advocate and why/impact

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