Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day. This approach does not serve the needs of everyone involved. By using the following mediation countdown, everyone will come to the table prepared.
1. Develop a Timeline
Using the tools below, if you are counsel representing a party, decide when you want the mediation, and then plot your timeline just as if it were a trial date. List all the tasks you need to do: prepare case analysis; educate clients on the mediation process and their role; and identify client positions and those of the other side. Be sure to allow for significant trial events and dates or any post-session follow-up.
2. Selection of the Mediator
Do not restrict yourself to the mediator your colleagues have always used – ask them whether their recommended mediators got the matter settled to their satisfaction. Ask whether they and their client enjoyed, or at least appreciated, the process with that mediator. Consider agreeing to a mediator recommended by the other side – presumably that is someone to whom they will listen.
3. Talk with the Mediator in Advance
Pre-mediation communication with the mediator ensures that there are no last-minute surprises in terms of which parties will attend and the format or process to be used.
4. Identify the Right Participants
Select a knowledgeable client representative who has the authority to settle the matter, even if it takes some creativity. Then ask the other parties who their representatives will be. They may this, although they should. If one party feels that the other’s representative is not knowledgeable or does not have authority, they may not listen to anything coming from that side of the table. If there are multiple parties on one side of the case, they should definitely confer about their representatives.
5. Risk Assessment Steps
Objectively evaluate the best result, worst result, and other potential scenarios and spend time making sure that all the decision-makers and client representatives understand the evaluations and agree with them. If there is a difference of opinion amongst client stakeholders, this must to be addressed so that mediation counsel and the mediation representative have clear direction.