Mediation is an alternative dispute resolution process used in lieu of formal procedures, where a neutral mediator attempts to help the parties come to a mutually acceptable agreement. The mediator can facilitate negotiations, review positions, exchange offers, point out the best and worst possible outcomes, etc. It is mostly an informal process, but typically follows a general pattern of holding an opening session where all parties and their lawyers are present and then holding separate caucuses.
Lawyers should prepare for mediation ahead of time, but not overdo it. While all mediations are different and rely some on the style and skill of the mediator for a successful mediation, proper preparation by the lawyers for the parties sets the table for a successful, or unsuccessful, mediation.
So, in short, how should a lawyer prepare for mediation?
First, it is critical that lawyers make sure that all decision makers are going to be in the room. The momentum of a mediation gets lost when a party that has not participated suddenly weighs in, with the possible exception of a claims representative requesting additional authority. If there is a third party that will be helpful or comforting, then the lawyer should get the consent of the opposing lawyer and the mediator.
Second, lawyers should discuss the mediation with his or her client(s) so they understand the process and have realistic expectations of their settlement positions. That way, they can come to the mediation table prepared to work toward settlement. The clients and the lawyers will work better as a team if they come to the mediation with the same understandings and expectations. It is not ideal to expect the mediator to rein in the client’s expectations to a reasonable level.
Third, lawyers should gather all of the necessary information on liability, damages, collectability, etc. and either provide it to the opposing lawyer before the mediation or have it available at the mediation. It may be helpful for the mediator to review any information the parties want to submit ahead of time to allow for an understanding of the issues involved. Some lawyers provide a mediation packet or letter outlining their position and opening demand while others simply bring the necessary information (and copies) to the mediation.
Last, lawyers should prepare a concise opening which outlines his or her rendition of the facts, claims, defenses, damages, etc. This is the lawyer’s chance to speak directly to the other parties involved without a filter. This opportunity is often either underdone or overdone. Lawyers must give some thought to the right approach and then decide on an approach – be it apologetic, aggressive, confident, open to settlement, or some mixture. If the lawyer does not have experience with the other parties, they should ask their own client for insight into the most effective approach. A mediation can be derailed at the start from long-winded, over-produced, unrealistic, or threatening openings.
Mediation is often the best chance for the parties to explore whether a resolution is possible or a trial will be required. Treat the mediation as the valuable opportunity it is and take advantage of it with proper preparation.