As an attorney, you know the drill: the better prepared you are, the more likely you’ll achieve a good outcome for your client. So here are seven keys to effectively prepare for a Mediation:
- Determine if your case is mediation-ready – Do you have enough discovery completed to properly evaluate your case? Perhaps the cost of discovery is a motivating factor for going to Mediation. Are your clients prepared intellectually, emotionally and financially to settle the dispute? If not, you have more work to do before you should go to Mediation.
- Evaluate your case – Realistically review the strengths and weaknesses of your positions. Ensure that your client is aware of both. Don’t give your client unrealistic expectations. A fully informed client is essential to resolving disputes. Explain what will happen at the Mediation.
- Prepare a brief Mediation Statement – In conjunction with your client, draft a Mediation Statement to share with opposing counsel that includes: the Procedural History, a Factual Statement, the documents or pleadings that will assist the Mediator, and, relevant Legal Authorities. You should also prepare a Supplemental Statement that you will not share with opposing counsel that includes: A statement of the strengths and weaknesses of the Plaintiff’s and Defendant’s Positions, the Settlement Positions of the Parties and any obstacles to settlement. Indicate who will be present at the Mediation. This exercise gives the Mediator valuable information and forces you and your client to review the case prudently in anticipation of the Mediation.
- Know your Mediator – Talk to the Mediator in advance. Ask the Mediator questions about his or her philosophy: is he/she a facilitator, evaluator or a combination of both? Learn about the Mediator’s procedure for the Mediation including joint meetings, caucuses, negotiations, opening statements, and term sheets.
- Prepare your Client for the Mediation – Discuss with your client the procedures for the Mediation. Explain to your client that a Mediation is a collaborative and problem-solving endeavor. Explain the process of negotiating and the need to be willing to compromise. Understand your client’s vision of how a resolution would be structured and the path to achieve such a resolution. Prepare your client for the length of the Mediation and the numerous twists and turns that might occur on the road to a settlement. Determine how actively your client wants to participate in the Mediation.
- Know your Client – The dispute is your client’s dispute, and the client will, ultimately, make the decision whether to settle or not. That being said, you, as the attorney, need to know your client. Will your client rely on you to determine what amount is reasonable to accept? Is your client strong willed and has his/her own view of how to resolve the dispute? Does your client want to be in the room with you during the Mediation? Is your client intimidated by the system and would rather be available by telephone? For some clients, active participation can be a cathartic event. They feel they have been harmed and just want to be heard. Other clients find the process to be traumatizing and just want to get the whole thing over with so they can get on with the rest of their lives. Each client is different, so each Mediation needs to be approached with the individual client’s needs in mind.
- Arrive Early – If the Mediation is online, ask the Mediator to have an online demonstration meeting, so you and your client understand and can work with the online platform. Just in case the technology goes down, make sure the Mediator has your and your client’s contact information. If the Mediation is in-person, get to the Mediation site a few minutes early, so you and your client can feel comfortable in the Mediation setting.
Be prepared. Your client expects nothing less. The 7 keys provide you a road map to follow in preparation for a successful mediation.